Law Commission’s report – Mental Capacity and Deprivation of Liberty
Tim Spencer Lane
This article, by Tim Spencer Lane, summarises the Law Commission’s report Mental Capacity and Deprivation of Liberty, published on 13 March 2017. The report (which includes a draft Bill) is the culmination of a 3 year review of the Deprivation of Liberty Safeguards (“DoLS”) under the Mental Capacity Act. The Law Commission’s report calls for the DoLS to be replaced, and sets out a new scheme called the Liberty Protection Safeguards.
Background to the report
The Law Commission’s review of the DoLS began in 2014 following a reference from the Department of Health. It was a response to a report by a House of Lords Select Committee which concluded that the DoLS legislation was “not fit for purpose”, and to a decision of the Supreme Court (known as “Cheshire West”) which gave a significantly wider interpretation of deprivation of liberty than had been previously applied.
In July 2015 the Law Commission published a consultation paper setting out provisional proposals for law reform. An interim statement was published in May 2016. The publication of the final report marks the completion of the review.
The case for reform
The Law Commission argues that there is a compelling case for replacing the DoLS. It refers to “widespread agreement” that the DoLS are overly technical and legalistic, and “too often fail to achieve any positive outcomes for the person concerned or their family”. The report argues that the DoLS are not capable of dealing with the increased numbers of people considered to be deprived of their liberty following Cheshire West and requiring safeguards. It points to widespread reports of backlogs, breached statutory timescales and increased workloads for the public sector. The Law Commission therefore calls for the DoLS to be replaced “as a matter of pressing urgency”.
The Liberty Protection Safeguards
The Law Commission’s replacement scheme is called the Liberty Protection Safeguards. The following provides a brief overview of the key elements.
The arrangements that can be authorised (Chapter 7)
Whereas the DoLS only apply to hospitals and care homes, the Liberty Protection Safeguards would also apply to other settings, for instance supported living, shared lives and private and domestic settings. In fact the new scheme is not limited to specific forms of accommodation or residence; it encompasses any situation where Article 5(1)(e) is potentially engaged. Authorisations could be given to enable a person is to reside in one or more places, or to receive care or treatment at one or more places. The specific arrangements that may be authorised are:
- arrangements that a person is to reside in one or more particular places;
- arrangements that a person is to receive care or treatment at one or more particular places; and
- arrangements about the means by which and the manner in which a person can be transported to a particular place or between particular places.
16 and 17 year olds (Chapter 7)
Whereas the DoLS apply to those aged 18 and over, the Liberty Protection Safeguards would apply to people aged 16 and over. Currently, unless detention under the Mental Health Act is appropriate, a court application is required to authorise a deprivation of liberty of a 16 or 17 year old. The Law Commission argued that this situation is unnecessarily onerous and expensive for the State (especially NHS bodies and local authorities, which are often expected to bring cases to court), and potentially distressing for the young person and family concerned. The report also points to evidence that public authorities are not currently taking cases to court when they should.
The responsible body (Chapter 8)
The Liberty Protection Safeguards replaces the “supervisory body” with the “responsible body”, which is charged with authorising arrangements that give rise to a deprivation of liberty. The Law Commissions argues that there should a stronger link between the commissioning of the arrangements and consideration of whether deprivation of liberty is justified. In other words, the body responsible for arranging care or treatment should (to the extent that this is practicable) be responsible for considering requests for authorisations, commissioning the required assessments and giving the authorisation.
The Liberty Protection Safeguards provides for the following three criteria to be applied to identify the responsible body in any case:
- if the arrangements are or proposed being carried out primarily in a hospital, the responsible body is the “hospital manager” (which would in most cases be the trust that manages the hospital in England or the local health board in Wales);
- otherwise, if the arrangements or proposed arrangements are being carried out primarily through the provision of NHS continuing health care, the responsible body is the relevant clinical commissioning group in England or local health board in Wales; and
- otherwise the responsible body is the “responsible local authority” (in most cases this will be the authority that is meeting the person’s needs or in whose area the person is ordinarily resident).
The conditions for an authorisation (Chapters 9 & 10)
The Liberty Protection Safeguards set out the following conditions, which must be met in order for the responsible body to authorise arrangements:
- the person lacks capacity to consent to the arrangements which would give rise to a deprivation of the person’s liberty
- a medical assessment has confirmed that the person is of unsound mind within the meaning of Article 5(4)(1)(e) of the ECHR)
- the arrangements are necessary and proportionate by having regard to the likelihood of harm to the person and/or other individuals if the arrangements were not in place and the seriousness of that harm;
- The required consultation has taken place (for instance with friends and family members)
- The authorisation would not conflict with a valid decision of a donee or a deputy as to where the person should reside or receive care or treatment.
Independent review (Chapter 10)
The Liberty Protection Safeguards require an “independent review” to be carried out in order to confirm that it is reasonable for the responsible body to conclude that the conditions for an authorisation are met, or (in certain cases) to refer the case to an Approved Mental Capacity Professional. No one who is involved in the day-to-day care or treatment of the person can act as the reviewer.
In cases which are not referred to an Approved Mental Capacity Professional the reviewer is required to certify personally that it is reasonable to conclude that the conditions for an authorisation are met. They must review the information available to the responsible body and determine whether or not the responsible body’s decision to authorise arrangements is a reasonable one to come to on the basis of that information.
The Approved Mental Capacity Professional (Chapter 10)
The Approved Mental Capacity Professional is a new role which is intended to build upon the existing best interests assessor role.
The Liberty Protection Safeguards requires a referral to be made to an Approved Mental Capacity Professional if:
- it is reasonable to believe that the person does not wish to reside or receive care or treatment at a particular place; or
- the arrangements are regarded as necessary and proportionate wholly or mainly by reference to the likelihood and seriousness of harm to others.
In all other cases there would be a power to refer cases to an Approved Mental Capacity Professional.
The Approved Mental Capacity Professional’s role is to determine whether or not to approve the arrangements. They must meet with the person, and can consult other key individuals. The written approval of the Approved Mental Capacity Professional would enable the authorisation of arrangements by the responsible body. The Approved Mental Capacity Professional cannot be someone who is involved in the day-to-day care or treatment of the person.
Local authorities would be responsible for the approval and ensuring there are sufficient numbers of Approved Mental Capacity Professionals. A regulation-making power allows, amongst other things, bodies such as the HCPC to be prescribed to approve courses for Approved Mental Capacity Professionals. The draft Bill does not specify which professionals could or could not undertake the new role; this would be a matter for the Governments.
The Liberty Protection Safeguards aim to put Approved Mental Capacity Professionals in a similar position to Approved Mental Health Professionals. They would act “on behalf” of the local authority but would be independent decision-makers who could not be directed to make a particular decision.
The authorisation (Chapter 11)
An authorisation can have effect immediately, or up to 28 days later.
The responsible body must produce an “authorisation record” which must include matters such as details of the arrangements authorised.
An authorisation does not provide statutory authority to deprive a person of their liberty; instead, a new section 4AA of the Mental Capacity Act would simply provide a defence to civil or criminal liability in respect of acts done pursuant to an authorisation.
An authorisation can last for an initial period of up to 12 months and can be renewed for a second period of up to 12 months and thereafter for periods of up to three years.
A responsible body can renew an authorisation, rather than initiating a fresh authorisation, if it reasonably believes that:
- the person continues to lacks capacity to consent to the arrangements;
- the person continues to be of unsound mind; and
- the arrangements continue to be necessary and proportionate.
An authorisation ceases to have effect (before the expiry date) if the responsible body if it knows or ought reasonably to suspect that:
- the person has, or has regained capacity, to consent to the arrangements;
- the person is no longer of unsound mind; or
- the arrangements are no longer necessary and proportionate.
However, in the case of people with fluctuating capacity, the Liberty Protection Safeguards enable arrangements to remain in place during limited periods of capacity to consent or object to the arrangements, provided that:
- the periods of capacity are likely to last only for a short period of time,
- the person remains at all times “of unsound mind” for the purposes of Article 5, and
- the authorisation of arrangements remains necessary and proportionate.
Reviews of an authorisation (Chapter 12)
The responsible body must set out in the authorisation record the fixed dates or prescribed intervals for reviews. The responsible body is required to keep an authorisation under review generally, therefore putting it in a position to undertake a review at any time in between the planned review dates if circumstances change. There would be a duty to hold a review:
- on a reasonable request by a person with an interest in the arrangements which are authorised;
- if the person becomes subject to the Mental Health Act; or
- if the responsible body becomes aware of a significant change in the person’s condition or circumstances.
Rights to advocacy and an appropriate person (Chapter 12)
Under the Liberty Protection Safeguards there is a duty to appoint an advocate unless there is an appropriate person to represent and support the person to whom the arrangements would apply. This duty applies when the responsible body is proposing to authorise arrangements.
An “appropriate person” cannot be someone who is engaged in providing care or treatment to the person in a professional capacity or for remuneration. The appropriate person must be appointed to act as such unless they do not consent, or the person whom they would represent and support does not consent or (if that person lacks capacity to give or withhold consent) it would not be in their best interests to be represented or supported by that other person. The appropriate person has a right to advocacy support.
If there is no appropriate person, an Independent Mental Capacity Advocate must be appointed. Under the draft Bill, the responsible body must appoint an advocate unless the person does not consent, or (if the person lacks capacity to consent) unless being represented by an advocate would not be in the person’s best interests. This is intended to ensure that advocacy is provided automatically and on an opt-out rather than an opt-in basis.
Rights of legal challenge (Chapter 12)
Under the Liberty Protection Safeguards the right of legal challenge is to the Court of Protection. But the Law Commission further recommends that the Government should review this matter (as part of its existing programme of reform) and consider whether a tribunal might be more effective.
Monitoring (Chapter 12)
The draft Bill gives the Government regulation-making powers to require bodies to monitor and report on the operation of the new scheme (such as the CQC and Ofsted). The regulations could be used to allow visits of certain types of institutions, more frequent visits in some cases, and “light-touch” forms of regulation in certain settings.
Mental Health Act interface (Chapter 13)
The report urges the Government to review mental health law in England and Wales with a view to the possible introduction of mental capacity-based care and treatment for mental as well as physical disorders (“fusion law”). In lieu of this, the draft Bill provides that the Liberty Protection Safeguards cannot be used:
- to authorise arrangements carried out in hospital for the purpose of assessing or treating mental disorder, and
- to authorise arrangements which are inconsistent with any requirement under one of the “community powers of the Mental Health Act (such as guardianship or a community treatment order)
Wider reforms of the Mental Capacity Act (Chapter 14)
The draft bill includes wider reforms to the Mental Capacity Act. These reforms are intended to provide Article 8 rights and improve decision-making under the Mental Capacity Act – regardless of whether a person is being deprived of their liberty. The draft Bill contains three reforms in this respect:
- The best interests checklist in section 4 of the Act is amended to require greater weight to be given to ascertainable wishes and feelings.
- The statutory defence under section 5 of the Act would not be available to professionals in respect of certain key decisions unless a written record has been prepared, which confirms a number of matters, for example that a formal capacity assessment has been undertaken and rights to advocacy have been given effect.
- The Government is given regulation-making powers to establish a supported decision-making scheme.
Advance consent (Chapter 15)
The draft Bill would enable a person to give advance consent to specified arrangements that would (but for that consent) give rise to a deprivation of liberty. If advance consent is given, the arrangements would not amount to a deprivation of liberty and therefore the Liberty Protection Safeguards would not apply.
The person must clearly articulate the particular arrangements to which they are consenting. In line with the law on advance decisions to refuse treatment, advance consent would remain valid unless:
- the person withdraws their consent when they have capacity to do so;
- there are reasonable grounds to believe that circumstances exist which the person did not anticipate at the time of giving the advance consent and which would have affected their decision had he or she anticipated them; or
- the person does anything else clearly inconsistent with the advance consent remaining their fixed decision.
Interim and emergency deprivation of liberty (Chapter 15)
The Law Commission’s intention is to bring forward formal consideration of the justification for a deprivation of liberty so that it occurs before the arrangements are made, rather than only afterwards. The DoLS system of urgent authorisations is therefore abolished. Instead, the draft Bill gives statutory authority to deprive someone of liberty temporarily in truly urgent situations and in sudden emergencies, but only to enable life-sustaining treatment or to prevent a serious deterioration in the person’s condition. Apart from those cases, it would not be permissible to impose a deprivation of liberty on someone until the proposed arrangements have been authorised.
Unlawful deprivation of liberty (Chapter 15)
The draft Bill provides that where care or treatment arrangements are put in place by, or on behalf of, a “private care provider” (defined as, broadly speaking, the managers of private care homes and independent hospitals) which give rise to a deprivation of liberty (and have not been authorised), the person may bring civil proceedings against the provider. The provider would not be liable if it reasonably believed that the arrangements did not give rise to a deprivation of liberty or the deprivation of liberty was authorised.
Coroners (Chapter 15)
The draft Bill would amend the Coroners and Justice Act 2009 to provide that the duty to hold an inquest would not apply automatically to people subject to the Liberty Protection Safeguards. The Law Commission also recommends there be additional safeguards in place when a death is attributed to a lack of care.
Practical impact of reform
- local authority social care practice - the local authority would no longer be responsible for all authorisations. The NHS would be a responsible body in certain cases (ie hospital and NHS continuing health care cases). The local authority would be responsible for approving Approved Mental Capacity Professionals
- SEN provision post 16 if the placement is residential - The Liberty Protection Safeguards can authorise arrangements which give rise to a deprivation of liberty for 16 and 17 year olds. It would therefore no longer be necessary to apply to the Court of Protection in such cases.
- Patients and service users - in most cases, a deprivation of liberty can only be authorised before the person can be deprived of their liberty rather than afterwards. There would continue to be rights to advocacy, regular reviews and access a court.
- Families - Families must be consulted before an authorisation can be given. Family members can also act as the appropriate person if they wish to do so. Families can also trigger reviews of the authorisation and access to a court.
- Catastrophic injury claims - If a lawyer is aware that the person’s care or treatment arrangements may amount to a deprivation of liberty, they could request that an authorisation is given by the responsible body, rather than having to take the case to court.
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R (on the application of Ferreira) v HM Senior Coroner for Inner South London  EWCA Civ 31,  All ER (D) 99 (Jan).
The Court of Appeal, Civil Division, held that any deprivation of liberty resulting from the administration of life-saving treatment fell outside art 5(1) of the European Convention on Human Rights, provided it was rendered unavoidable as a result of circumstances beyond the authorities' control, was necessary to avert a real risk of serious injury or damage and was kept to the minimum required for that purpose. Accordingly, there had been no error in the defendant coroner's decision not to hold an inquest into the death of the claimant's sister without a jury.
This ruling provides useful guidance on the application of the principles that govern the right to liberty in cases of medical emergency and/or those of unsound mind. Esther Schutzer-Weissmann, a barrister at 6KBW, examines this case - Deprivation of liberty in medical emergencies (R (Ferreira) v HM Senior Coroner for Inner South London).
Secretary of State for Justice v Staffordshire County Council & SRK  EWCA Civ 1317
The Court of Appeal dismissed the Secretary of State for Justice's appeal against the first instance ruling that a private deprivation of liberty required a welfare order was needed to avoid a violation of the state’s positive obligations. The Court of Appeal held that criminal and civil law sanctions which operate retrospectively after arbitrary deprivation of liberty has occurred are insufficient to discharge the state’s positive obligations under Article 5(1). The court also emphasised that there is nothing in the jurisprudence to support an argument that no breach of Article 5(1) occurs if the individual in a private setting happens to be receiving a proper standard of care at the particular time the state becomes aware of the arrangements.
When do care arrangements constitute a deprivation of liberty that needs to be authorised by the Court of Protection? Christine Cooper, barrister at Field Court Chambers, discusses the issues raised by this case - Deprivation of liberty in care arrangements (Secretary of State for Justice v Staffordshire County Council).
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Can a designated 'nearest relative' within the meaning of regulation 24 of the Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008 in turn delegate that function to another person? Could the nearest relative function be delegated to a local authority?
What is the procedure for obtaining a nearest relative declaration under s 29 Mental Health Act 1983?
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