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Wednesday, 15 March 2017

The Law Commision Report on MCA and DOLs

Mental Capacity and Deprivation of Liberty

A report by the Law Commission on Mental Capacity & Deprivation of Liberty has now been published.

If you work within the Healthcare Sector and if you are a part of the system through relatives being in care then you will be familiar with the Mental Capacity Act and DOLs, you will have found that the legal framework is both confusing and frustrating to negotiate around.  The existing legal framework for the care and treatment of individuals who lack capacity to consent, and who are being cared for in circumstances which deprive them of their liberty is particularly frustrating and confusing.

This frustration and confusion is mainly born out of a lack of training, even for those in a position to make “best interest” decisions.  I’m not in a position nor in the business to belittle the work that our professionals do in regards to The Mental Capacity Act and DOLs, I actually sympathise with them that through lack of training provided their understanding and use of the legal framework has been abused.  The current DoLS scheme is unfit for purpose, and the Law Commission have recommended that it “be replaced as a matter of pressing urgency”.

The Rt Hon. The Lord Hardie QC said of the Mental Capacity Act 2005
“we are very concerned by what we heard about the safeguards.  The evidence suggests that tens of thousands of people are being deprived of their liberty without the protection of the law, and without the protection that parliament intended.  Worse still, in some cases the safeguards are being wilfully used to oppress individuals and to force decisions upon them.”

The Deprivation of Liberty Safeguards (DoLS) – the bespoke authorisation process for people deprived of their liberty in care homes and hospitals – were described by the House of Lords Select Committee for the Mental Capacity Act 2005 (MCA) as “frequently not used…leaving individuals without the safeguards Parliament intended” and social care providers “vulnerable to legal challenge”.

It was this opinion in mind that The Law Commission was tasked with undertaking a complete review of the relevant legislation and, following a lengthy and detailed consultation, published its final report and draft bill on 13 March 2017.

Therefore, The Edith Ellen Foundations’ Mental Capacity Act Conference of the 30th March 2017 is much needed and so important.  The scope for the day will be to refresh the training (if any has been received) and to support understanding whilst providing solutions to prevent further failings in the future.  We will be reporting from the conference on the day with the #MCA17, information and resources will also be available to download

In the Edith Ellen’s own discussions with Care Providers we have learnt that many hope that the new process will be less convoluted, and that it will provide meaningful benefit for the individual concerned.  Again, though this came with the addition “whilst not overburdening providers with bureaucracy and expense”.

The Report

The Law Commission report sets out 47 recommendations that cover not only deprivation of liberty, but also reforms that aim to improve MCA decision-making more widely.  On reading the report, and knowing care providers I believe that there will be a mixed response to these recommendations.

Providers may welcome the following recommendation of the new proposed scheme:
1.    It will no longer, necessarily, be left to care homes to identify a deprivation of liberty and apply for authorisation; instead the local authority or NHS body (the “responsible body”) becomes responsible for the entire process, where it has commissioned or put the arrangements in place. This significantly reduces the burden of form filling for care home managers and staff. The intention is that arrangements will be authorised in advance of being implemented.
2.    It will no longer be the care home, but the “responsible body” who must notify the regulator if a deprivation of liberty is authorised.
3.    “Urgent authorisations”, commonly used now by care homes to plug the gap, form no part of the proposed new system; although there will be authority to deprive a person of their liberty in truly urgent situations, pending authorisation by the responsible body.
4.    The LPS will apply across all settings: care homes and hospitals; supported living; shared lives; respite; children’s homes; special residential schools; domestic and private arrangements; and potentially community provision, such as day centres.
5.    LPS can cover transport to or between places, and arrangements carried out in more than one setting.
6.    LPS can apply to anyone aged sixteen or over.
7.    Initially, LPS can last up to twelve months. This can then be renewed for a further twelve months, after which time they can be indefinitely renewed for periods of up to three years.

This offers a simplified process a new system for authorising deprivation of liberty, which retains some of the more useful features of DoLS, but dispenses with the inefficient and unhelpful aspects. There are still three assessments to be undertaken, by at least two different independent assessors.  Only time will tell of its effectiveness!

For those who would be classed as Service Users, those who this report will actually (in reality) affect there is some good news.
·         There will be a greater emphasis on the requirement to consult with families
·         Section 4 of the Mental Capacity Act (the part which covers “best interests’ decisions” has been proposed with the amendment imposing an active duty to ascertain and give particular weight to the wishes and feelings of the individual.
·         Liberty Protection Safeguards (LPS) will authorise particular arrangements which give rise to a deprivation of liberty – these arrangements will now need to be more specific, not broad and vague as we currently see.
·         LPS can only authorise arrangements that give rise to a deprivation of liberty, not, for example, restrictions on contact with family or friends.
·         Four key safeguards are included: reviews, independent advocacy, the right of legal challenge, and monitoring and reporting requirements.

However, despite these being the good points within the report I can see that there are elements to the report and draft bill that may worry health and social care providers and prompt a review of certain aspects of practice – particularly in relation to admission procedures.  Such as where care is self-funded, as opposed to Commissioned (NHS or LA), it will still be the responsibility of the Care Provided to apply for DOLs.

This bill which has been draft from the Law Commission Report also created a new Civil Claim for damages, should private care providers put arrangements in place that are not authorised, and give rise to a deprivation of liberty. Recommendation 41 - recommends introducing a record keeping requirement for certain big decisions about people who lack capacity. These would-be decisions relate to:
·         moving the person to long term accommodation
·         restricting the person’s contact with others
·         the provision of serious medical treatment
·         the administration of “covert” treatment
·         the administration of treatment against the person’s wishes

The Law Commission also placed greater emphasis for additional requirements around reporting the wishes and feelings of the person about whom the decision is being made

·         the provider will not be liable if it is reasonably believed that the arrangements did not give rise to a deprivation of liberty or the deprivation of liberty was in fact authorised;


·         if the provider has made the appropriate referral to the responsible body, it will be covered for as long as it takes the responsible body to deal with the referral, if at all times, they reasonably believe the individual lacks capacity to consent, and the arrangement is necessary for to prevent a serious deterioration in the person’s condition or to deliver life sustaining treatment.

So, the draft report for Amendments to the Mental Capacity Act is now in the hands of the Government what will survive the scrutiny and debate of the Houses of Commons and Lords and what will be left?

Until then, while we wait for the new amendments to become an Act of Parliament it will be the same process as before, and to paraphrase The Rt Hon. The Lord Hardie QC “tens of thousands of people will continue to be deprived of their liberty without the protection of the law, and without the protection that parliament intended.  Worse still, in some cases the safeguards will continue to be wilfully used to oppress individuals and to force decisions upon them”.

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