Liberty Protection Safeguards: Pre-authorisation Review

The Mental Capacity (Amendment) Act 2019 is an amendment to the Mental Capacity Act 2005.  It details the circumstances in which a person can lawfully be deprived of their liberty without having to obtain an order from the court.  Previously, this was achieved (and will continue until the new legislation is fully implemented) through the Deprivation of Liberty Safeguards (DoLS).  However, since the Cheshire West case in 2014, supervisory bodies (local authorities responsible for authorising a deprivation of liberty) have struggled to keep up with demand because the Cheshire West case lowered the threshold for what was considered to constitute a deprivation of liberty.  At its peak, around 120,000 people were potentially being unlawfully deprived of their liberty and awaiting authorisation. The Mental Capacity (Amendment) Act 2019 seeks to streamline the assessment and authorisation process to ensure that people aren’t deprived of their liberty without due process within the meaning of Article 5 of the European Convention on Human Rights (ECHR).

Under the Liberty Protection Safeguards, before the arrangements can be authorised, a pre-authorisation review must be carried out in all cases.  In certain circumstances, it must be carried out by an Approved Mental Capacity Professional (AMCP).  In other cases, it must not be carried out by a person involved in the day to day care or treatment of the cared-for person or a person who has a connection with a care home. The purpose of the pre-authorisation review is to review the information the responsible body relies on to authorise the arrangements. Also to determine whether it is reasonable for the responsible body to conclude that the authorisation conditions are met.

The provisions that detail who carries out the pre-authorisation review ensure that a degree of independence is applied as required by case law arising Article 5 ECHR.

Under the Deprivation of Liberty Safeguards, assessments and recommendations we made to the supervisory body by a Best Interests Assessor (a health or social care professional who had undertaken additional training).  The Mental Capacity (Amendment) Act 2019 makes no provision for such a role.  Instead, it introduced the role of Approved Mental Capacity Professional.

Pre-authorisation reviews must be completed by an Approved Mental Capacity Professional if;

• the arrangements provided for the cared for person to reside in a particular place, and it is reasonable to believe that the cared-for person does not wish to reside in that place,
• the arrangements provide for the cared-for person to receive care or treatment at a particular place, and it is reasonable to believe that the cared for person does not wish to receive care or treatment at that place,
• the arrangements provide for the cared-for person to receive care or treatment mainly in an independent hospital, or
• the case is referred by the responsible body to an Approved Mental Capacity Professional and that person accepts the referral.

Thorough consultation with any relevant people must be made because it will assist in helping to determine whether the cared-for person does not wish to reside or receive care or treatment in a particular place.  This will in turn determine whether the pre-authorisation review should be carried out by an AMCP or someone else.