The Law Commission has been tasked with the impossible
In 2014, the government asked the Law Commission to solve an impossible equation: to establish a framework of safeguards satisfying the requirements of article 5 of the European Convention on Human Rights for greater numbers of people, across a greater diversity of places, with a greater diversity of needs, than had ever before existed in this jurisdiction. And in a time of austerity. To add to the Commission’s difficulties, the health, social care and legal sectors still remained sharply divided over the symbolic and practical implications of the Supreme Court’s Cheshire West decision ([2014] UKSC 19).
There is a lot to digest in the Law Commission’s proposals for Liberty Protection Safeguards (LPS). Will the flexible proposals for assessment and referral to an approved mental capacity professional offer a framework that is sufficiently light of touch in situations where there are no concerns, yet robust and independent enough to cope with disputes? The role of advocates will be central to ensuring the ‘independence’ of the LPS. The Commission has proposed an ‘opt-out’ referral to advocacy to strengthen this right. Given the potential size of the cohort, this is likely to carry a hefty price tag. Campaigners must not let this proposal become diluted as it passes into law.
The Law Commission has left undecided the question of whether the appeal against detention under the LPS should be to a tribunal or the Court of Protection. Whatever jurisdiction is chosen by the government, campaigners will need to remain vigilant to ensure its rules and processes place P’s participation at their heart. It is heartening that the proposals to strengthen the place of wishes and feelings in best interests decisions, and supported decision-making, met with such public enthusiasm.
Disability and family organisations should also pay careful attention to proposals to limit the ‘general defence’ of the Mental Capacity Act 2005 (MCA). At present, it is something of a grey area as to whether decisions such as a move into long-term care, restrictions on contact or serious medical treatment against a person’s will can be taken without court authority. The Commission’s proposals that professionals may rely on the ‘general defence’ provided they have a written record of assessments and determinations will place such decisions without court authority on a surer footing. Yet it is unclear whether they will offer an adequate safeguard for disabled people and families objecting to these decisions. In The participation of P in welfare cases in the Court of Protection (Lucy Series, Phil Fennell and Julie Doughty, Cardiff University, February 2017), we argued that this raises such important human rights, constitutional and politically sensitive questions about the limits of professional authority under the MCA that there should be a full consultation with a wider range of procedural safeguards considered. If disabled people and family organisations are concerned about this, they need to start campaigning for a better safeguard now.
Finally, the Law Commission has proposed that the LPS should also apply in ‘domestic settings’. This collapses together regulated care such as supported living, which is typically commissioned by the state and can operate in similar ways to a care home, with care provided by families in the family home. It is unclear what benefits extending a framework for detention into the family home would bring, and this proposal may be political dynamite that risks alienating support for the scheme and potentially for human rights in general. Those campaigning for the LPS to be implemented must tread very carefully in this area.

About the author(s)

Dr Lucy Series is a researcher at the Centre for Health and Social Care Law at Cardiff University.