Thursday, 30 July 2015

Law Commission Publishes Consultation Paper on Mental Capacity & DoLS

On 7th July 2015, the Law Commission released its long awaited consultation paper on mental capacity and deprivation of liberty. It makes very interesting reading, and suggests sweeping changes to the whole process of the management of people who lack capacity, and makes some recommendations that would require significant changes to the Mental Health Act.
One of the encouraging things about this document is that it weighs in to the Deprivation of Liberty Safeguards, and has hardly anything good to say about them, quoting a wide range of eminent sources criticising its ““bewildering complexity”, with Mr Justice Charles saying that writing a judgement on a DoLS case was “as if you have been in a washing machine and spin dryer”.

As the paper says, referring to DoLS:
In March 2014 two events inflicted significant damage. First, the House of Lords post-legislative scrutiny committee on the Mental Capacity Act published a report which, amongst other matters, concluded that the DoLS were not “fit for purpose” and proposed their replacement. A few days later, a Supreme Court judgment widened the definition of deprivation of liberty to a considerable extent. The practical implications have been significant for the public image of the DoLS, and the regime has struggled to cope with the increased number of cases. (1.6)

The Deprivation of Liberty Safeguards should be replaced by a new system called “protective care"

The paper makes the important point that:
The DoLS assume that nursing staff and care workers on the ground can identify and respond to deprivations of liberty. Yet this requires an assessment of a highly technical question of fact and law which is ultimately to be decided by the Strasbourg court. The concept of deprivation of liberty continues to cause disagreement amongst lawyers, academics and – as witnessed in Cheshire West – Supreme Court justices. The result is that “care providers, insofar as they think about DoLS at all, seem to perceive it as a technical legal solution to a technical legal problem” and not something that will benefit the relevant person in any tangible way. Reports have shown that in care homes knowledge of, and confidence in, the DoLS is limited, and managers and staff are heavily reliant on their local authority to identify potential deprivations of liberty amongst residents. (2.15)

As if that were not enough to sound the death knell of the DoLS, the paper goes on to say:

Terms such as “standard authorisations”, “managing authority” and “supervisory body” have been described variously as cumbersome, Orwellian, and failing to reflect modern health and social care functions. Particular criticism has been directed at the label “Deprivation of Liberty Safeguards”.

It does not come as a surprise, then, to find that one of the first recommendations the paper makes is that “the Deprivation of Liberty Safeguards should be replaced by a new system called “protective care”. It recommends that this should include hospitals, care homes, supported living, and even “shared lives and domestic accommodation.”

The paper makes a distinction between “supportive care” and “protective care.” While “protective care” would replace the current Deprivation of Liberty Safeguards, and would also be extended to include anyone aged 16 or over, “supportive care” “is intended to provide suitable protection for people who are in a vulnerable position, but not yet subject to restrictive forms of care and treatment (including deprivation of liberty). In other words, it is intended to establish a preventive set of safeguards that reduce the need for intrusive interventions in the longer term.”(6.2)
Supportive care would apply where someone is living in a care home, supported living or shared lives accommodation, and also if a move into such accommodation is being considered. However, the whole point of supportive care is “to authorise preventive forms of care and support, such as enhanced assessment and care planning oversight procedures – and would not authorise a deprivation of liberty”. (6.12)

The role of the Best Interests Assessor will be abolished, and replaced by an Approved Mental Capacity Professional.

Where deprivation of liberty is being considered, but outside the current parameters of the Mental Health Act, a proposed “restrictive care and treatment scheme” would come into play. But crucially: “it is not organised around deprivation of liberty. Instead it looks at whether care and treatment arrangements are becoming sufficiently intrusive or restrictive to justify enhanced formal safeguards. This will include those deprived of liberty, but will also include some whose arrangements fall short of this”.
This is where one of the major changes to the existing arrangements is being proposed. The role of the Best Interests Assessor will be abolished, and replaced by an Approved Mental Capacity Professional. These “Approved Mental Capacity Professionals” would be “in the same position legally as Approved Mental Health Professionals. In other words, they will be acting as independent decision-makers on behalf of the local authority.”(7.104)
These AMCPs would have powers and duties which appear to be even more wide ranging than those of the AMHP. They would be involved in assessing and reviewing people subject to restrictive care and treatment, who would be people defined as lacking “decision-making capacity as a result of an impairment of, or a disturbance in the functioning of, the mind or brain.” AMCPs would be required to arrange for the assessment of such people “to be undertaken by a person already involved in the person’s care (eg the person’s social worker or nurse) and quality assure the outcome of that assessment or oversee or facilitate the assessment; or undertake the assessment themselves.”
Other tasks of the AMCP would include ensuring that decision-making processes and care arrangements comply with the Care Act, the Mental Capacity Act and other regulations, that there are regular review meetings, and that the person has an advocate and appropriate person to take care of their interests. Where someone is subject to restrictive care and treatment, the AMCP would even be required to specify the duration “which may not exceed 12 months.” They would even have discretion to discharge the individual from such a regime.
Where people who are in a hospital setting, they would be able to be deprived of their liberty for up to 28 days; but if such deprivation continued beyond that, then an AMCP would have to agree to this.
The paper suggests that the Mental Health Act definition of mental disorder, broad though it is, would not be used for these cases, stating that “people with a pure brain injury and those dependent on alcohol or drugs should not be excluded automatically from the benefits of supportive care.”
We are attracted to the approach taken under the Mental Health Act whereby decision-making is more coherently and clearly defined than under the DoLS
Their proposals would obviate the need to go to the High Court for cases currently excluded by the MHA, which includes “people in a persistent vegetative state or minimally conscious state caused by a concussion or brain injury, or someone suffering from a stroke or locked in syndrome.”

The writers of this paper state that “we are attracted to the approach taken under the Mental Health Act whereby decision-making is more coherently and clearly defined than under the DoLS. They go on to say:

We have considered several options for the interface between our scheme and the Mental Health Act. First, we could retain and clarify the existing interface. In doing so, it is important to emphasise that we would not wish to preserve the current drafting of schedule 1A, which is widely viewed as impenetrable. (10.17)

The paper therefore makes a proposal that the MHA should be amended. This is in order to establish “a formal process for the admission of people who lack capacity and who are not objecting to their care and treatment.” This would place such people within the safeguards already available to patients subject to the MHA, and would importantly include the right to appeal to a mental health tribunal.

I’ve necessarily only skimmed the surface of this extensive paper, which runs to 230 pages (although you can read the 12 page summary), picking out proposoals and recommendations particularly close to my heart. But there is a great deal to like in these proposals, which go a long way to addressing the deficiencies of the Deprivation of Liberty Safeguards in particular. I also like the fact that they recognise the Mental Health Act as being a good place for these changes to reside.

However, this is a consultation paper. The final proposals for changes in the law may be quite different. Not least is the impact of the Conservative Government’s plans to scrap or reform the Human Rights Act, and the fact that many of the proposals are designed to address issues raised by recent case law and the European Convention on Human Rights.

It is far from clear whether the current government is concerned enough about human rights in general to spend much time legislating to reform and extend the rights of people who lack capacity.


  1. I was generally impressed with the consultation document as a serious set of proposals that had the courage to piss off powerful lobbies: the judges, psychiatrists and MHA conservatives.

    I was a little disappointed that the Law Commission chose to join in the 'pile on' damning DoLS and everything about it and to focus on the largely unjustified criticism about DoLS being some sort of bureaucratic nightmare. Another perspective is that some of the alleged complexity was in fact flexibilty (provisions for using 'equivalent' assessments and flexible lengths for authorisations) and transparency, (sending copies of assessments providing a clear rationale for decisions to the relevant person and their supporters - something the MHA has yet to manage). Can anybody really point to the Mental Health Act as a model of limpid clarity that could be understood by a bright twelve year old and administrated from the back of an envelope kept in Matron's pinny pocket?

    Some of the models for the LC proposals are taken, not always with clear acknowledgment, from DoLS. Equivalent assessments are clearly the inspiration for much of how the Protective and Restrictive Care arrangements will actually work. AMCaP is conceived as a direct successor to the BIA role.

  2. Continued:

    In fact my concern is that too much expectation is being loaded on to one of the few bright points from DoLS in that AMCaPs are being expected close the Bournewood Gap and doubtless to polish the stars and whiten our teeth while we sleep. I agree with the Masked AMHP that the scope of the role is much broader than that of AMHP. I wonder how staff will maintain their MCA case load alongside other duties and at the moment struggle to see how AMCaPs will be supported against likely serious pressure from funding authorities about the scope of their decisions and recommendations.

    I do have some concerns. If the original iteration of DoLS forgot to give a statutory definition of a deprivation of liberty, these proposals sort of forget to explain how the arrangements for 'restrictive care' actually would authorise a deprivation of liberty.This might be a deliberate attempt to future proof operational arrangements against the continuing possibility that the definition of a DoL will bib about at judicial whim or less creditably may be an attempt to blur things sufficiently so as to make the issue fade from sight. Some of the provisions are strikingly lacking in checks and balances. A doctor will be able to recommend the detention of a patient in a general hospital for up to 28 days before this decision is scrutinised by an AMCaP. If you compare this to the s. 5 MHA holding powers or even the 7 day Urgent Authorisation under DoLS, this is a rather long period.

    Proposals about a tribunal are interesting and are clearly based on the model of the MHRT. I think a locally based tribunal will impress accountability on staff and authorities and will force the issues of wider workforce training and high standards of practice. As the proposals point out, the scope of the tribunal's work will have be much wider than those of the MHRT as considering issues of mental capacity and best interest rather than the more limited discharge or maintain detention question considered by the MHRT. This innovation will be opposed by the judges, who despite all evidence to the contrary seem to be in denial about the failure of the Court of Protection to consider any more than a sliver of contested cases and seem committed to maintaining the Court essentially in its current form.

    To deal with the issues about changes to the MHA to accommodate authorisation of the care of non-objecting incapacitous patients. I think these are sensible. The extent to which psychiatrists have been willing to indulge in hair splitting arguments in order to deprive people of the protection of the MHA and remove themselves from accountability has been to me, truly frightening. It's reminded me that the MHA is as much about the control of staff as the containment of the mentally ill. The only way to prevent this insidious practice of pushing patients into the DoLS regime is clearly to remove the incentive for degrading peoples' rights by making it legally impossible for the MCA being used to authorise mental health treatment. Again, though its memory be damned, it took DoLS and the West Cheshire judgment to remind us how weak and narrowly defined MHA practice had become. Lots of informal patients were denied the protection of the MHA by being regarded as 'informal' patients and AMHPs were implicated in this practice. Though five years on, the level of understanding about the MCA is better there are still a few AMHPs about who regard themselves as keepers of a secret flame and are prone to deliver lofty lectures to less favoured colleagues about how it's only people with severe and enduring mental functional illnesses who require and deserve the protection of the MHA.