Thu, 20 Apr 2017
Quick Glance Summary of the Law Commission Report on DOLS
On 13 March 2017 the Law Commission published its much awaited Report following its review of the Mental Capacity Act and the Deprivation of Liberty Safeguards (DoLS).
Many practitioners have personal experience of the overly complex and bureaucratic DOLS regime which was criticised by a House of Lords Select Committee in March 2014. It was described as “not fit for purpose”. Below is a summary of the LC Report which can be found at:
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Nageena Khalique QC
Head of the Court of Protection Group
15 March 2017
1. Overview of the liberty protection safeguards (LPS)
These will replace the existing DOLS regime. A draft Bill attached to the report seeks to repeal DOLS and would amend other parts of the Mental Capacity Act to provide increased protection for people whose rights to respect for their private and family life and their home under Article 8 of the ECHR are at risk. A new Code of Practice covering all aspects of the Mental Capacity Act is proposed to accompany the new scheme.
2. Who do the Liberty Protection Safeguards apply to?
The individual must:
- be aged 16 or over;
- lack capacity to consent to the arrangements that are proposed or in place;
- be of “unsound mind” within the meaning of Article 5(1)(e) of the ECHR.
3. Which arrangements can be authorised?
The Liberty Protection Safeguards apply to arrangements which are proposed or in place to enable the care or treatment of a person, and which would give rise to a deprivation of that person’s liberty.
The following arrangements can be authorised:
- a person is to reside in one or more particular place;
- a person is to receive care or treatment at one or more particular place; and
- the means by and manner in which a person can be transported to a particular place;
- In most cases, arrangements that involve the person being in hospital for assessment or treatment of a mental disorder cannot be authorised;
- Arrangements cannot conflict with requirements arising under legislation relating to mental health (e.g. a requirement imposed by a community treatment order or guardianship under the Mental Health Act)
4. Who can authorise arrangements?
- If the person is receiving treatment in hospital or in receipt of NHS continuing health care, the responsible body will be the relevant NHS body (e.g. the hospital trust, clinical commissioning group or local health board)
- Otherwise the responsible body will be the local authority (including where the person is a “self-funder”).
5. What are the conditions for authorisation of arrangements?
The LPS include a prescribed list of “conditions” that must be met in order for the responsible body to authorise arrangements which would give rise to a deprivation of a person’s liberty. If one of the conditions is met, an authorisation cannot be granted.
The positive conditions are as follows:
a) the person lacks capacity to consent to the arrangements;
b) the person is of “unsound mind”;
c) the arrangements are necessary and proportionate;
d) the required consultation has been carried out;
e) an independent review has been carried out; and
f) in certain cases, the approval of an Approved Mental Capacity Professional (AMCP) has been obtained.
The negative conditions are that the arrangements do not conflict with a valid decision of:
a) a donee of a lasting power of attorney; or
b) a court appointed deputy.
6. What safeguards must be provided?
A person subject to the LPS will have regular reviews of the authorised arrangements (and the right to request a review), as well as the provision of an advocate or appropriate person to represent and support them both during the initial authorisation process and during the period of the authorisation itself. They will also have the right to challenge the deprivation of liberty in court.
- These procedures are designed to make the authorisation process more streamlined than the DoLS while giving further protection, in particular, to people who object to their proposed placement.
- The proposed two-tiered approach, with independent reviewers and Approved Mental Capacity Professionals, seems to strike a proportionate balance between responding efficiently to the volume of cases requiring authorisation since Cheshire West and giving proper safeguards to people who object are too easily over-ruled under the current law.
- The Liberty Protection Safeguards would operate within a broader set of proposed reforms to improve decision-making across the Mental Capacity Act, not only in relation to people deprived of liberty.
- All decision-makers would be required to consider a person’s ascertained wishes and feelings when a best interests decision is taken.
- In the case of actions taken pursuant to a number of important best interests decisions, professional providers of care or treatment would be unable to rely on the defence to liability provided by section 5 of the Act unless a written record of the decision-making process has been prepared.
- The record must confirm that a formal capacity assessment has been undertaken and rights to advocacy have been implemented.
- The cases to which this applies are decisions to move a person into particular accommodation, to restrict their contact with others or to administer certain types of medical treatment to them.