This article originally appeared in LexisNexis:

Private Client analysis: Alex Cisneros, barrister at No5 Barristers’ Chambers, discusses the scope of changes introduced by the Mental Capacity (Amendment) Act 2019 (MC(A)A 2019) which received Royal Assent on 16 May 2019. MC(A)A 2019 amends Mental Capacity Act 2005 (MCA 2005) and will have a considerable impact on the deprivation of liberty (DoL) regime.

Original news

Mental Capacity (Amendment) Act 2019, LNB News 20/05/2019 44

An Act to amend the Mental Capacity Act 2005 in relation to procedures in accordance with which an individual may be deprived of liberty where the individual lacks capacity to consent, and for connected purposes in England and Wales. This Act comes into force partly on 16 May 2019 and fully on whatever day the Secretary of State appoints by regulations.

What are the key differences between the DoL safeguards and the new liberty protection safeguards (LPS) introduced by MC(A)A 2019? 

Definition of DoL

During the bill’s passage through parliament, it looked likely to give a statutory definition for what a ‘deprivation of liberty’ actually means. However, despite several proposals, a definition did not make it into MC(A)A 2019. As a compromise, MCA 2005, s 42 has been amended to mean that the new code of practice will have to give guidance on what kind of arrangement might constitute a DoL. This will be a definition of sorts and must be reviewed within three years of the legislation coming into effect and every five years thereafter.

Changes to the authorisation procedure

Previously described as the ‘supervisory body’ under the DoL safeguards, the body charged with authorising any DoL arrangements will now be called ‘the responsible body’.

The current DoL safeguards scheme only enables authorisations within hospitals or care homes. There are two changes to this in MC(A)A 2019:

  • the LPS scheme places no restriction on the type of setting where an authorisation can be put in place
  • the LPS scheme allows responsible bodies to authorise a DoL in more than one setting—this does not however enable a responsible body to add a new setting into an existing authorisation during a review and a new authorisation would be needed in those circumstances

The responsible body may authorise arrangements if the following three ‘authorisation conditions’ are met. The new ‘authorisation conditions’ roughly map the existing requirements and they are:

  • capacity—the person lacks capacity to consent to the arrangements
  • medical—the person has a mental disorder within the meaning of section 1(2) of the Mental Health Act 1983
  • best interests—the arrangements are necessary to prevent harm to the person and proportionate in relation to the likelihood and severity of harm to the person

The responsible body is able to rely on previous assessments and assessments done for other purposes to satisfy the first two conditions. The third condition must be satisfied by way of a fresh assessment done at the time of the decision.

There are three additional steps that the responsible body must now follow:

  • consult with the following individuals in order to ascertain the person’s actual or likely wishes and feelings (unless it is not practicable or appropriate to do so):
  • the person
  • anyone named by the person as someone to be consulted
  • anyone engaged in caring for the person or interested in the person’s welfare
  • any donee of a lasting power of attorney or an enduring power of attorney
  • any deputy appointed by the Court of Protection
  • any appropriate person and any independent mental capacity advocate
  • consider the appointment of an appropriate person or an independent mental capacity advocate
  • complete a pre-authorisation review—they must be undertaken by an approved mental capacity professional (AMCP) where the person is objecting to the placement or the placement is an independent hospital (in other situations, the review can be undertaken by a health or care professional so long as they are not involved in the day-to-day care or providing treatment to the person)

Once an authorisation takes effect, it can last for up to a year before needing to be renewed. It can then be renewed for one further year and then for three years thereafter.

How far do you envisage these changes will go in achieving the aim of reducing the burden on local authorities when seeking an order to confine an incapacitated person to a hospital or care home?

Beyond the initial transition period, these amendments should help local authorities to front load any work that needs doing to authorise a DoL. Measures such as authorisations across multiple locations and three-year review periods mean that this new scheme should reduce the burden on local authorities in the long term.

Having said that, the new scheme now applies to 16 and 17 year olds whereas the DoL safeguards only applied to those older than 18. This presents an obvious extension to the work that local authorities will be doing.

Additionally, MC(A)A 2019 also extends the settings where a DoL can be authorised. This poses an interesting dilemma for local authority special educational needs teams who may now need to be authorising DoL in schools and other educational placements.

What other key changes to mental capacity law are introduced by MC(A)A 2019? Is there anything missing?

There are three main areas that remain undefined within the new scheme.

First of all, MC(A)A 2019 is silent on the details of what a pre-authorisation review would entail. MC(A)A 2019, Sch AA1, Pt 4 says that local authorities must make arrangements for individuals to be approved as AMCP. How local authorities will approve individuals and what qualifications that person would need is still unclear. MC(A)A 2019 allows the Secretary of State, in England, and the Welsh Ministers, in Wales, to create regulations to answer these questions.

Secondly, MC(A)A 2019 contains no provisions concerning transition arrangements for old DoL safeguards. The secondary legislation necessary to port the existing authorisations into the new scheme does not yet exist. This leaves local authorities, independent mental capacity advocates (IMCAs) and even the Court of Protection in the dark. How long should local authorities continue to grant standard authorisations for? What will happen if the new scheme comes in midway through the process of a challenge under MCA 2005, s 21A? Will local authorities need to review all standard authorisations to make sure that they are in line with the new scheme?

Thirdly, MC(A)A 2019 is silent on what the legal aid position will be under the new scheme. According to Regulation 5(g) of the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013, SI 2013/480, a person under DoL safeguards, or their representative, is entitled to non-means tested legal aid if they wish to challenge an authorisation of their DoL. While it is assumed that this will persist for the new scheme, this has not been confirmed.

When will these changes come into force and how quickly do you anticipate we will see an impact? Are there any relevant next steps to note?

MC(A)A 2019 received Royal Assent on 16 May 2019. At the time of writing, it is still unclear what the date of implementation will be as it makes clear that most provisions only come into force ‘on whatever day the Secretary of State appoints by regulations’. It is thought likely that this will be around April 2020 however, this does not account for potential changes in government before then.

Interviewed by Kacper Zajac.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.