On 29 June 2018, the Joint Committee on Human Rights ("the JCHR") published its report following a Consultation on the Law Commission's proposals to reform the Deprivation of Liberty Safeguards ("DOLS").
Bevan Brittan LLP had provided a response to the JCHR as part of this consultation and we were pleased to see that our response has been referred to in the JCHR's Report.
The DOLS were introduced in 2007 to create a framework for the protection of vulnerable persons lacking capacity to decide about their care and treatment when that care and treatment may amount to a deprivation of liberty under Article 5 ECHR. Despite having a simple aim, the DOLS framework is widely acknowledged as being overly confusing, expensive and bureaucratic.
In 2014, the Law Commission was tasked with reviewing the DOLS framework and in March 2017, the Law Commission published its final recommendations which involved replacing DOLs with a new framework called the Liberty Protection Safeguards ("the LPS").
In February 2017, the JCHR announced an Inquiry into the reform of the DOLS framework focussing on the Law Commission's proposals. The JCHR invited interested parties to provide evidence on three key questions:
- Whether the Law Commission’s proposals for LPS strike the correct balance between adequate protection for human rights with the need for a scheme which is less bureaucratic and onerous than the DOLS?
- Whether the Government should proceed to implement the proposals for LPS as a matter of urgency?
- Whether a definition of deprivation of liberty for care and treatment should be debated by Parliament and set out in statute?
A copy of Bevan Brittan's response to the JCHR's call for evidence can be found here.
The JCHR's Report and Recommendations
The JCHR asserts that the DOLS scheme is "broken" and as a result "many incapacitated people continue to be deprived of their liberty unlawfully." The JCHR makes the following recommendations.
1. Statutory definition of deprivation of liberty
The JCHR recommends that Parliament should set out a statutory definition of deprivation of liberty "in order to clarify the application of the Supreme Court's acid test and bring clarity for families and frontline professionals." The JCHR pays particular attention to the Law Commission's extension of safeguards into domestic settings and although supporting this, notes there is a "delicate balance between safeguarding and disproportionate intrusion." The JCHR takes the view that the introduction of a statutory definition might help to target the safeguards to those persons in domestic settings who truly require them and reduce any unnecessary intrusion.
This issue has already featured in the first debate of the Government's Draft Bill to amend the Mental Capacity Act ("the Bill") in the House of Lords on 16 July 2018 and it will be interesting to see whether a definition is included within the Bill as it moves through Parliament.
2. Unsound Mind
A key condition for an authorisation under the LPS is that the cared-for person is of "unsound mind." This differs from the mental health condition under DOLS, which required P to be suffering from a "mental disorder under the Mental Health Act 83". The inclusion of unsound mind is intended to bring the wording of the LPS in line with Article 5 which uses the term; however, Bevan Brittan expressed concern to the JCHR that the term is "vague, less well understood and more stigmatising." The JCHR refers to this concern within its report and recommends that "further thought be given to replacing 'unsound mind' with a medically and legally appropriate term."
This issue was also raised in the first debate of the Bill in the House of Lords on 16 July 2018 and it will be interesting to see whether any alternative terms are suggested as amendments.
3. Right to Participate.
The JCHR recommends that "the individual's right to participate in court ought to be codified and that responsibility for securing the individuals access to court should be prescribed clearly on the face of the bill."
The JCHR will therefore likely be disappointed with the Bill put to Parliament on 3 July 2018 as this largely retained the status quo on access and the right to participate. It also did not address the Law Commission's recommendations that consideration should be given to transferring jurisdiction for challenges to a deprivation of liberty to the First Tier Tribunal as opposed to the Court of Protection, something that the JCHR also welcomes in its report.
4. Mental Health Act ("MHA") / Mental Capacity Act ("MCA") Interface
The JCHR acknowledges the Law Commission's proposals for simplifying the interface between the MHA and the MCA would "likely alleviate some of the confusion with the current system" however it urges the ongoing Mental Health Act Review to look at some of the issues surrounding the proposals, in particular the focus on whether a person's disorder should be classified as primarily physical or mental in determining whether the MHA or the MCA applies.
It is therefore surprising that the Government has not sought to make any changes to the MHA/ MCA interface in the Bill; however, this may be because the Government is waiting to see what happens with the Mental Health Act Review before taking action.
5. Extra Funding
The JCHR welcomes these provisions in the Law Commission's proposals for the "enhancement of rights to an independent advocate" but states that consideration must be given by the Government as to how the required increase in the number of advocates will be funded.
Disappointingly, the Bill put to Parliament rolls back the enhancement of rights provided in the Law Commission's proposals however we suspect that this will be an area on which there will be strong protest and therefore future amendments may well be made.
The JCHR raises concerns about the independence of persons reviewing authorisations on behalf of responsible bodies and recommends that the Code of Practice should set out clear guidelines to eradicate conflicts of interest.
It is interesting to note that the language in the Bill put to Parliament on 3 July 2018 has been toned down from "independent reviews" to "pre-authorisation reviews." This is likely to be concerning to the JCHR and strengthen calls for the Code of Practice to set out clear guidance regarding conflicts of interest.
7. Advance consent
The Law Commission's proposals included provision for advance consent for care arrangements. The JCHR recommends that the process for this should be formalised and a monitoring mechanism established.
Curiously the Bill put to Parliament on 3 July 2018 did not include any reference to advance consent however it will be interesting to see whether this is included in at a later stage.