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
However:
·
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;
and
·
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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