The Retirement of the Deprivation of Liberty Safeguards

A new Bill has started its transition through Parliament on its way to becoming law.  The Mental Capacity (Amendment) Bill was introduced to the House of Lords on 3rd July 2018 and seeks to replace the Deprivation of Liberty Safeguards.

There are some who thought they’d never see this day… and others who hoped they wouldn’t, but it’s finally here.  No, I’m not referring to England actually progressing past the group stages of the world cup.  The long awaited reform to the deprivation of liberty safeguards has started its journey through the House of Lords.  The Mental Capacity (Amendment) Bill was introduced to the House of Lords on 3rd July 2018 as it begins its journey towards becoming an Act.  It generally reflects the proposed Bill from the Law Commission following the publication of their report which seems like an age ago now.  But does have some notable omissions. The Bill isn’t the wide-ranging reform to the Mental Capacity Act (MCA) that some had hoped for, instead it’s limited to a replacement of the current DoLS regime.  It was recommended that the new scheme applied to people aged 16 and 17 years old as well as those 18 and over to fit better with the MCA as a whole but no, it only applies to those aged 18 and over.  Nor does the Bill define what constitutes a deprivation of Liberty so for now at least, the acid test from the Cheshire West Case still applies. The Bill also excludes recommendations from the law commission around supported decision-making and placing greater emphasis on the care-for person’s wishes and feelings.

Two of the more notable inclusions are pre-authorisation reviews and care home manager statements.

Pre-Authorisation Review

Before the responsible body (local authority or hospital manager) can authorise a deprivation of liberty, a pre-authorisation review must be carried out.  It can’t be completed by someone involved in the day-to-day care of the cared-for person, or in providing any treatment for the cared-for person.  If the cared-for person does not wish to live in a particular place (and the arrangements are for that place) then the pre-authorisation review must be carried out by an Approved Mental Capacity Professional (AMCP).  Similarly, if the arrangements are for the cared-for person to receive care or treatment in a particular place and they don’t want to receive care or treatment there, an AMCP is required to undertake the pre-authorisation review.

Statement from Care Home Manager

For a responsible body to authorise care home arrangements, the care home manager must complete a statement confirming that:

• The cared-for person is 18 years old or over
• The arrangements amount to a deprivation of the person’s liberty
• The arrangements aren’t excluded because they are mental health arrangements
• The person lacks capacity (a capacity assessment must be completed and recorded) and the arrangements are necessary and proportionate
• An Independent Mental Capacity Advocate (IMCA) is involved in certain cases or if they are required
• A consultation has taken place with certain people
• A draft authorisation record has been completed

At first glance, this Bill appears to be further from the law commission’s draft Bill than some might have imagined and raises more questions than answers.   There is again assurance that it will save local authorities £200 million.  But how much will it cost the NHS?  At the moment it is only local authorities who are responsible for authorising DoLS.  It is proposed that under the new scheme, the NHS will also be responsible where a person is in a hospital.

There is also, what appears to be a huge responsibility placed upon care homes to provide much of the information required for an authorisation (including a draft authorisation) in readiness for the responsible body to ‘sign off’ the authorisation.  This will require a lot of training for care home managers to ensure that they are familiar with the expectations of responsible bodies and ensure that mental capacity assessments are completed to a certain standard.

It will be of great interest for many to see how this Bill is debated during its passage through the Houses, the next scheduled reading is on 16/07/2018.