‘A careful attempt to solve a conundrum’
The Law Commission proposes replacing the much-criticised deprivation of liberty safeguards with a broader ‘protective care scheme’. Sophy Miles looks at what the change would mean for clients without mental capacity and for their lawyers.
On 7 July 2015, the Law Commission published ‘Mental Capacity and Deprivation of Liberty: A Consultation Paper’ (Consultation Paper No 222), widely trailed as the potential answer to the crisis in the protection of the article 5 rights of those unable to consent to their living or care arrangements. New legislation is planned for 2016.
The key proposal is the replacement of the existing deprivation of liberty safeguards (DoLS) with ‘protective care’, which would apply to a wider range of people than DoLS. This subdivides into ‘supportive care’ and ‘restrictive care and treatment’.
Supportive care (chapter 6) is described as the ‘outer layer’ and would apply to anyone who lacks capacity (for the purpose of Mental Capacity Act (MCA) 2005 s2) who is living in a care home, supportive living scheme or shared lives accommodation; or for whom a move into such accommodation is being considered.
Local authorities will be required to ensure that anyone who ‘may be eligible for supportive care’ has a capacity assessment, generally as part of the care planning process under the statutory obligations that apply to that person, for example the Care Act (CA) 2014 or Mental Health Act (MHA) 1983 s117 (para 6.46).
A person lacking the requisite capacity is entitled to the following safeguards (para 6.46): a requirement that the local authority keeps their arrangements under review, including referrals for restrictive care and treatment; the discretion to appoint an approved mental capacity professional (AMCP); and the appointment of an appropriate person or advocate.
These safeguards do not authorise the move (para 6.3) and increased access to advocacy is seen as the main line of defence against arbitrary moves away from home. Recognising that resource-based decisions are a key factor here, the paper seeks views on the LB Bill1Disabled People (Community Inclusion) Bill 2015 (LB Bill) draft 2.
proposal that budgets for living at home should not be set by reference to costs of residential care (paras 6.96, 6.100, 6.102); and on whether there should be a duty to secure accommodation that reflects the person’s wishes and feelings and to seek the agreement of the donee of an LPA, a deputy or a declaration from the court (para 6.103).
Comment: The protective care safeguards will increase local authority oversight of arrangements for self-funders lacking capacity, together with at least some advocacy entitlement. Whether genuine disputes about residence will be identified and referred to the court, at a time when an alternative to residential care of some description is still a possibility, is unclear.
Restrictive care (chapter 7) is recognisable as the replacement for DoLS, but will apply to a broader group of people (those lacking capacity under the MCA 2005, as opposed to those with a mental disorder, per the DoLS scheme – para 7.13). It will apply in care homes, supported living or shared lives where some form of restrictive care and treatment is proposed. ‘Restrictive care and treatment’ means any one of a non-exhaustive list of factors is present (para 7.31), including:
•the person is not free to leave;
•continuous or complete supervision and control;
•barriers to limit the person’s access to areas of the premises.
Only one factor need be present, demonstrating that the scheme will extend to those who might not now be regarded as satisfying the ‘acid test’ (lack of freedom to leave and continuous supervision and control) and the commission seeks views as to whether it should extend to cases where the need for restrictions stems from risks to others rather than the vulnerable adult.2There is conflicting authority over whether DoLS should be used in such cases, but it is suggested that the Law Commission’s view is correct. In Y County Council v ZZ  EWCOP B34 it was held to be in ZZ’s best interests not to be allowed to behave in a way that would put him at risk of retaliatory actions; in J Council v GU and others  EWHC 3531 (COP), measures to prevent GU from contacting children were held to engage his article 8 rights and require separate authorisation. See also SSJ v KC and another  UKUT 376 (AAC).
The new scheme would replace best interests assessors (BIAs) with AMCPs (para 7.68), a role with some similarities to approved mental health practitioners (AMHPs) under the MHA 1983. However, the AMCP’s role will differ in several important regards. The AMCP will not conduct assessments on being referred a case (eg by a local authority monitoring the case of someone in the supportive care scheme whose needs have changed such that one of the restrictive factors in para 7.31 is now needed). Instead, the AMCP will arrange the assessments, the detail of which will be set out in regulations (paras 7.85, 7.88). These may include equivalent assessments as long as they are up to date (paras 7.87, 7.90). Crucially, AMCPs will now decide whether to authorise restrictive care, as independent decision-makers with a similar role to AMHPs. Oversight of AMCPs’ training would be strengthened (paras 7.106, 7.111). AMCPs will have the power to set conditions, which need to contain clear instructions (para 7.127), and the commission seeks views as to whether they should be able to set more-restrictive conditions than have been requested, and would be responsible for monitoring compliance (paras 7.128, 7.135; paras 7.131, 7.134). The 12-month maximum duration of restrictive care and treatment would be unchanged (para 7.76).
The commission proposes that some decisions should always require applications to the court (eg serious medical treatment). It notes current Department of Health guidance that a decision to stop contact must be authorised by the court3Department of Health, ‘The Mental Capacity Act 2005: Deprivation of Liberty Safeguards – the early picture’ (April 2010), paras 19–22.
and seeks views as to whether all significant welfare cases where there is a major disagreement (a key finding in LB Hillingdon v Neary and another
 EWCOP 1377) should be referred to the court (paras 7.45–7.49). The commission’s provisional view is that the availability of an appeal (see below) will suffice. A second AMCP (ie not the one who authorised the scheme) will be responsible for monitoring a person subject to restrictive care and treatment, and will have the discretion to bring the authorisation to an end (paras 159–163). The scheme contains provisions for authorisations to be reviewed, by the AMCP with oversight of the person’s case or by the local authority, and retains the concept of the relevant person’s representative (paras 9.64–9.65).
The restrictive care scheme will apply to those whose circumstances fall short of deprivation of liberty. For those who are deprived of their liberty (including those in their own homes), two additional safeguards will apply. First, deprivation of liberty must be expressly authorised in the person’s care plan (para 7.168), and second, the AMCP must ensure objective medical evidence is provided by a doctor or psychologist independent of the detaining institution (para 7.191). The medical assessment will seek to address the ‘unsoundness of mind’ requirement in article 5(1)(e); the test is whether the person ‘is suffering from a disability or disorder of the mind or brain and lacks capacity to consent to the proposed care and treatment’ (para 7.192).
Comment: One of the most positive innovations in DoLS has been the role of BIAs, who can be instrumental in helping care homes think outside the box about reducing the restrictions in care plans. While the commission pays tribute to this role (para 7.61), the proposals will take the new AMCP away from visiting care homes and ascertaining the views and wishes of those detained there. Giving the AMCP decision-making responsibility (and the discretion not to grant an authorisation) may bring greater clarity to the process. However, the analogy with AMHPs is instructive: an AMHP cannot make an application for detention under the MHA 1983 unless they have personally seen the patient in the 14 days ending with the date of the application (MHA 1983 s11(5)).
The proposal to establish a tribunal system to review cases under the restrictive care and treatment scheme will please many concerned about the pressure on, and delays in, the Court of Protection.
The removal of the need for significant welfare cases to be referred to the court would be a blow to the article 8 rights of vulnerable people and their families, raising the spectre of a scheme being used by statutory bodies to ‘get their own way’. A right of appeal at this stage will only be meaningful if those affected are able to use it, in the sense of their capacity but also available funding. The automatic referral scheme is welcome and addresses a longstanding concern about the article 5(4) compliance of the DoLS scheme, but by the time the first referral is made, a status quo will have developed and alternatives such as home care packages may have been lost. A key issue for legal aid is the continuing disparity whereby those deprived of their liberty under one regime (DoLS) are entitled to non-means tested legal aid and those deprived under other regimes (MCA 2005 s16 or inherent jurisdiction) are not.
Mental Health Act interface
The commission, potentially controversially, proposes a new type of admission under the MHA 1983. It would allow the admission of compliant, non-objecting patients, who will be deprived of their liberty (paras 10.22, 10.27) but will be entitled to a lower level of safeguards. These will consist of: the right to an independent mental health advocate; a power to provide treatment with the agreement of an attorney, deputy or the Court of Protection; a prohibition on treatment contrary to a valid advance decision; a requirement for a second opinion for certain forms of treatment; the right to seek a review of the treatment plan; and access to the mental health tribunal (para 10.22). Incapacitated noncompliant patients would continue to be treated under the MHA 1983.
Comment: It is disappointing to see that one of the arguments against extending the new scheme into the MHA 1983 is the perceived ‘stigma’ of use of the act (para 10.16). Constant repetition that the MHA 1983 is somehow stigmatising is an effective way of maintaining it. The concept of the ‘MHA-lite’ admission process may increase the number of people with learning disabilities who are detained in hospital. A further concern is the potential reduction in safeguards for the most vulnerable individuals who cannot articulate objections.
•A separate scheme for protective care in hospitals and palliative care settings, allowing deprivation of liberty for up to 28 days based on the report of a registered medical practitioner (paras 8.9, 8.32).
•Potential amendments to the MCA 2005, with wide-ranging implications. Chapter 12 proposes a formal ‘supported decision-making process’ to reduce the gap between the ‘best interests’ approach of the MCA 2005 and the requirements of the UN Convention on the Rights of Persons with Disabilities, particularly article 12, which entitles disabled people to legal capacity on an equal basis with others. It considers how such procedures work in other jurisdictions and the interplay with the remainder of the MCA 2005.
•The new scheme to be regulated by the Care Quality Commission in England, and the Care and Social Service Inspectorate Wales and the Healthcare Inspectorate Wales as appropriate (para 14.21).
•Extension of the protective care scheme to 16- and 17-year olds who lack capacity (para 15.11).
The consultation paper contains a magisterial overview of the law as it affects those lacking capacity to make important decisions and represents a careful attempt to solve a conundrum dating back to the Bournewood litigation.