The Law Commission yesterday published its draft Bill to amend Deprivation of Liberty Safeguards (DoLS): the Mental Capacity (Amendment) Bill alongside a report summarising its consultation from last year.
Following the Cheshire West judgement the Department of Health originally asked the Law Commission to undertake a limited review of deprivations of liberty in supported living arrangements and other community settings, and to consider the learning that could be applied to the DoLS. Following subsequent engagement and discussion with stakeholders, Ministers agreed that it would be more appropriate for the Law Commission to consider the legislation underpinning the DoLS in its entirety. The Law Commission carried out a public consultation between 2015-16 and have now published their final report setting out their recommendations and draft Bill.
The new proposals, called Liberty Protection Safeguards (LPS), in summary, are:
- The authorisation under LPS will take place before care arrangements are made. This is to end ‘rubber stamping’ authorisations after the event. There would be an option of a statutory deprivation of liberty, but only to enable life-sustaining treatment or to prevent a serious deterioration in a person’s condition. The paper says that it would not be permissible under the scheme to impose a deprivation of liberty on someone until the arrangements have been authorised. This is designed to make sure that only necessary and proportionate arrangements are being considered, and that alternatives are also being considered in a timely way.
- The decision maker who authorises the deprivation will be either the local authority or the NHS hospital manager. The idea behind this is that it will be the person commissioning the person’s care or treatment, and to make sure it is part of care planning.
- The LA or NHS will formally assess the deprivation of liberty as justified. This then needs to be confirmed:
- In most cases, in an internal review; OR
- In two cases, following a separate assessment by an Approved Mental Capacity Professional (a new role, modelled on AMHP in mental health legislation). These two situations may apply to some autistic people:
- Where it appears that the person does not wish to reside in or receive care and treatment at a particular place; OR
- Where the arrangements are solely or mainly for the protection of people other than the person being placed.
- While DoLS authorises deprivation of liberty on a more general level, LPS will authorise particular arrangements for care or treatment, applying a proportionality test to the proposed arrangements.
- Although NHS commissioners will have authority to authorise deprivations of liberty, the report is clear that this shouldn’t be used as a way round the Mental Health Act: “The Liberty Protection Safeguards should not apply to arrangements carried out in hospital for the purpose of assessing, or providing medical treatment for, mental disorder within the meaning it is given by the Mental Health Act. But the Liberty Protection Safeguards should be available to authorise arrangements in hospital for the purpose of providing medical treatment where those arrangements arise by reason of learning disability here that disability is not associated with abnormally aggressive or seriously irresponsible conduct.” This will need careful looking at to make sure its robust.
- Following this, it would be subject to review at fixed periods (set for each deprivation, and recorded), AND either on request from an interested person, if the individual becomes subject to the Mental Health Act, or if there’s a significant change in circumstances.
- The standard duration for a deprivation of liberty is 12 months. Each new application is decided afresh.
- It is recommended that the LPS regime would also apply to 16/17 year olds (DoLS only applied to over 18s).
- The questions around how to legally challenge appear to have been largely parked. The Law Commission has recommended the Government review which body would be most appropriate.
There is also a very useful flowchart of the process on page 51 of the report.
It is now for the Government to decide whether to take this further. If it decides to proceed, it will bring the Bill forward formally, and it will then be subject to the usual Parliamentary processes. We will keep you updated on progress with this draft Bill.