Update on the Mental Capacity (Amendment) Bill

Author:
Angela Jackman
Public Law Partner
Date:
01/04/2019

The key purposes of the Mental Capacity (Amendment) Bill are to address concerns with the current Deprivation of Liberty Safeguards (DoLS) and respond to recommendations made by the Law Commission in March 2017.

An important theme is the extent to which the current Bill protects the rights of individuals who lack mental capacity to make welfare decisions, balanced against the current burdens on Local Authorities arising from a resource-heavy assessment procedure.

The Bill proposes a new system, known as Liberty Protection Safeguards (LPS), which will replace DoLS. The passage of the Bill through Parliament has been predictably protracted; it is expected to become law by spring 2020. It’s pleasing that some concerns raised by practitioners and interested parties have been addressed, with corresponding amendments made either in the House of Lords or in the House of Commons. These include:

The Position of 16 to 17-year-olds

There had been concern that whilst the Law Commission report proposed that 16 to 17-year-olds should be included within the LPS, this did not make its way into the Bill. Following lobbying and review by the House of Lords, practitioners who advise 16 to 17-year-olds are pleased that this age group has now been included in the Bill and will therefore fall within the LPS, which is intended to create a more flexible and person-centred scheme than the current system.

The issue regarding detention of 16 to 17-year-olds has been a grey area for a number of years, so the decision to include this age group will make for some certainty and consistency. 

Definition of Deprivation of Liberty

Potentially thousands of individuals throughout the UK are deprived of their liberty even whilst living within their community. Individuals’ freedom to come and go can be affected in a range of different scenarios. 

It is important that there should be a definitive understanding of when a person is deprived of their liberty and therefore when they should be protected by statutory safeguards. They are otherwise subject to a fundamental breach of their civil liberties without adequate remedies.

Despite a recommendation from the Law Commission that the Bill should include a statutory definition of deprivation of liberty, this was originally omitted. The government later proposed a statutory definition which was considered in the House of Lords in February 2019 but was rejected. As a result, there is ongoing debate on refining a statutory definition of deprivation of liberty. Further updates will be provided. 

The Patient

The government has now agreed that there should be explicit provision for the patient to be consulted during the course of assessments. Worryingly, this had been previously omitted or overlooked.

Currently, under DOLS, the supervisory body is under a duty to appoint a Relevant Person’s Representative or Independent Mental Capacity Advocate (IMCA) depending on the circumstances. There is no corresponding duty to appoint under the Bill, The responsible body has to decide if the patient can be supported by an appropriate person. If  not, the responsible body only has to take reasonable steps to appoint an IMCA where the patient lacks capacity to consent to this, and only if the responsible body believes the appointment will be in the patient’s best interests. Whilst there is a presumption that an IMCA will be appointed in circumstances where there is no appropriate person to represent a vulnerable patient, this doesn’t provide the same certainty as under the current system.

This therefore remains an issue upon which practitioners and interested groups are lobbying as it’s vital for the patient to access guaranteed representation.

The Assessment Process

One of the criticisms of the DoLS scheme is the current number of required assessments (6), which public bodies argue are resource-heavy and make it hard to comply with statutory obligations to all detained individuals. Patients also often find it very distressing to have to engage in multiple assessments when they’re unhappy about their placement yet remain there despite the assessments.

The Law Commission proposed a streamlined assessment process, but unfortunately, when this was translated into the first draft of the Bill, it did not specify that assessments must be completed by individuals with appropriate skills and knowledge.

An amendment has now been approved to require that assessors must have appropriate skills and knowledge, and will be required to certify that the suggested arrangements for the patient’s detention are “necessary and proportionate”.

This is especially important because one of the key recommendations of the Law Commission was to replace the best interests requirement with a “necessary and proportionate” requirement, to justify the patient’s detention. However, there is also concern that the envisaged three assessments under the LPS could technically be conducted by the same person and this would omit any room for independent scrutiny.

The responsible body can also delegate responsibility for arranging assessments to care home managers, which raises concerns about possible conflict of interest. Some care managers may be influenced by their financial interest in securing or maintaining a placement at their home.

Furthermore, under LPS, there will be no equivalent to an urgent authorisation; care home managers will instead self-authorise the initial deprivation which will not be subject to any time limits. This is worrying in terms of safeguards and whether the patient will be entitled to legal at this point to challenge the arrangements.

Another of the Law Commission’s recommendations was that the LPS would permit an authorisation to apply to different placements, to avoid the need for costly reassessments taking place each time a patient moves from one placement to another. Whilst there would be cost-saving benefits and the flexibility of enabling vulnerable patients to move without hindrance between placements, there is concern to ensure this flexibility does not compromise the need for scrutiny and suitability of later placements. This appears to have been addressed by a requirement to carry out a review either before a move or as soon as possible thereafter. The debates have focused on enabling a standard authorisation to cover different settings so it can travel with a patient but it wouldn’t be possible to vary it to apply to a completely new type of setting once issued.

Conclusion

Overall, there have been some favourable amendments during the passage of the Bill which address the need to safeguard the patient’s interests.

We now await, with keen interest, the remaining stages of the process by which the Bill will become an Act. Key outstanding issues include the statutory definition of deprivation of liberty. There is clearly a fundamental requirement for a new Act to have, as its starting point, a concrete definition of deprivation of liberty, particularly as the current DoLS scheme has been beleaguered with challenges and criticisms since it began. A second issue is the importance of ensuring the patient has ready access to representation without unfair limitations being imposed by the responsible body. A third issue is whether safeguards will be available when care home self-authorise initial periods of detention.

Once the finalised LPS scheme has been approved by Parliament, an update will be provided on our website.

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