Mental Capacity (Amendment) Bill starts its journey through Parliament: the replacement of DoLS

The Bill introduces a new administrative scheme for authorisation of deprivation of liberty arising from arrangements for care or treatment of persons lacking capacity to consent to those arrangements. The current Deprivation of Liberty Safeguards (DoLS) in Schedule A1 Mental Capacity Act 2005 (MCA 2005) will be repealed. The new scheme will apply to care settings of all types (not just care homes and hospitals).

The Bill is based on the recommendations made by the Law Commission in 2017 for the “Liberty Protection Safeguards” and the government has referred to the new scheme by the same name. The Bill started its passage through Parliament in House of Lords.

Some aspects of the new scheme:

• The scheme is introduced by a new Schedule AA1 to be inserted into MCA 2005. Schedules A1 and 1A and s 16A will be repealed (Clause 1(4); Sched 2 of the Bill).
• A person may be deprived of their liberty if the arrangements for their care or treatment are authorised under Schedule AA1 (new 4A(5) MCA 2005).
• As currently under the DoLS, the scheme will only apply to persons aged 18 or over.
• The person deprived of their liberty is called the “cared-for person” (Sched AA1, para 2).
• The conditions for authorisation are that the cared-for person lacks capacity to consent to the arrangements, is of “unsound mind” (defined as having the same meaning as in Art 5(1)(e) ECHR) and the arrangements are “necessary and proportionate”(Sched AA1 para 11).
• As under the current scheme, it is the arrangements for care or treatment to be provided that are authorised by the scheme not the care or treatment itself (Sched AA1, para 2 and explanatory notes para 33).
• Arrangements for transporting a person to and from particular places can be authorised under scheme (Sched AA1 para 2(3)(c)).
• The responsible body for authorising deprivation of liberty mainly in a hospital will be the hospital manager; as regards care arrangements under NHS Continuing Health Care not mainly in a hospital the responsible body will be the relevant CCG or Local Health Board. Otherwise the responsible body will be a local authority (Sched AA1 para 6).
• There is a duty to consult specified people including those who care for the cared-for person, anyone interested in the care-for person’s welfare, any “appropriate person” and independent mental capacity advocate, the main purpose of which is to try to ascertain the cared-for person’s wishes or feelings in relation to the arrangements (Sched AA1 para 17).
• In respect of deprivation of liberty in a care home, care home managers are given a number of duties. They must arrange assessments, carry out the consultation and where appropriate provide to the responsible body a statement that the requirements for authorisation are satisfied (Sched AA1 paras 13 and 14).
• A pre-authorisation review must be carried out before the responsible body can authorise a deprivation of liberty. This must be carried out by a person who is not involved in the day-to-day care of or providing treatment to the cared-for person or, if it is reasonable to believe that the cared-for person does not wish to receive the care or live in the place concerned (the person is objecting to the arrangements), the review must be carried out by an Approved Mental Capacity Professional (Sched AA1 paras 18-20).
• As regards the duration of the authorisation, the initial authorisation and the first renewal may each last for a maximum of 12 months. After that, any subsequent renewal can be for up to 3 years (Sched AA1 paras 23 and 26).
• The cared-for person is to be represented and supported either by an “appropriate person” or an Independent Mental Capacity Advocate (Sched AA1 paras 34-37).
• The right to challenge the deprivation of liberty in the Court of Protection is provided for in a new s 21ZA MCA 2005.
• A new s 4B MCA 2005 is inserted setting out criteria for when steps necessary for life-sustaining treatment or doing a vital act which deprive the person lacking capacity of their liberty are authorised. The new power will take the place of the current provision for urgent authorisation (Clause 2).

The government says the Bill’s aims include to make the process simpler and more efficient, and for restrictions on liberty to be considered as part of the overall care package. It estimates that local authorities will save £200 million or more a year (GOV.UK, 3 July 2018).

The Bill will need careful scrutiny to see if the scheme provides enough of an “independent check”. In this regard, independent advocacy and Approved Mental Capacity Professionals can be seen as key aspects of the new scheme.

The Bill, the Explanatory Notes, the impact Assessment and information about the passage of the Bill through Parliament are available here: Bill documents — Mental Capacity (Amendment) Bill [HL] 2017-19.

Joint Human Rights Committee reports on reform of the DoLS

On 29 June 2018 the Joint Committee on Human Rights published its report “The Right to Freedom and Safety: Reform of the Deprivation of Liberty Safeguards” including a recommendation that Parliament should set out a statutory definition of deprivation of liberty.