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The Law Commission proposals for DoL

23 September 2015
The issue of deprivation of liberty (“DOL”) has risked bringing the law into disrepute over the last few years, as a result of its complexity, ambiguity and, some would say (post Cheshire West), impracticality.

The Law Commission has been asked by the Government to review the whole issue, including both the Deprivation of Liberty Safeguards and DOL in the community, which can currently only be authorised by an application to the Court of Protection. Their consultation paper, published on 7 July 2015, is open for response to 2 November 2015.

View the paper here.

At more than 200 pages, the consultation is a wide ranging and ambitious document, and its scope goes far beyond the narrow issues of Article 5 (the right to liberty) of the ECHR, and into rights to family life (Article 8), as well as supported decision making / care planning much more widely.

Headlines

  • The Law Commission will not attempt to redefine a DOL, deferring instead to the Supreme Court. The Cheshire West “acid test” (“continuous supervision and control and not free to leave”) will hold sway for the foreseeable future. This means that those who are currently regarded as DOL will remain so under the Law Commission proposals, and a proper legal process / authorisation is still required for each patient / service user to meet their Article 5 rights.
  • But the Law Commission deliberately takes a broader view, and proposes a system which is as much concerned with Article 8 rights to family life. It feels that the line between “DOL” and “not DOL” has acquired too much significance, and carries more weight than it can bear, blurry as it sometimes is, if it makes the difference (in theory at least) between enormous levels of scrutiny (through DOLS or the Court of Protection) on one side of the line and, on the other, nothing. The Law Commission seems to intend to level off that disparity, by identifying a much wider pool of people who should be of concern and require some level of safeguards, though they may fall short of being DOL, even with the line drawn in Cheshire West.
  • As such, a tiered system is proposed, with proportionate safeguards according to the extent of the restrictions, and tailored to the particular setting. The apparent complexity of the system (which will no doubt provoke much debate) is inevitable with any move away from the “one size fits all” of the Deprivation of Liberty Safeguards to a more nuanced approach.
  • The overall system will be known as “Protective Care” – reflecting an acceptance that the terminology of “deprivation of liberty” has not been helpful – and contains a number of different, self contained schemes, set out in a little more detail below, but in outline:-
    • “Supportive Care” – a “protective outer layer” to the system (para 5.9), drawn much more widely than “DOL”, and intended to extend some additional protection (mainly by way of additional advocacy and emphasis on care planning) for those in care homes, supported living or shared lives (not a family home) who lack capacity to decide on care / accommodation. It is especially aimed to ensure that care plans do not progress to become a DOL unless absolutely unavoidable (chapter 6).
    • “Restrictive Care and Treatment” – is the closest equivalent to the current DOLS scheme, and is intended to be Article 5 compliant, but is deliberately defined more widely than the Cheshire West acid test (see below) to ensure that it covers more people, across care homes, supported living and shared lives (and, in some circumstances, a family home). Again, the safeguards mainly consist of increased access to advocacy, and independent scrutiny of the care planning, which will be the responsibility of a BIA (rather than the local authority), with their role beefed up and rebadged as “Approved Mental Capacity Professionals” (“AMCP”), bringing them into line with AMHPs under the MHA (chapter 7).
    • A separate “Hospital Scheme” will apply for a DOL in Hospital (and, where appropriate, in palliative care) with a doctor able to authorise a DOL of up to 28 days, with certain safeguards, before referral to an AMCP, in line with the wider Restrictive Care and Treatment scheme (chapter 8).
  • Overall, huge emphasis is put on the value of advocacy (chapter 9), and the role of the BIA (now “AMCP”), though it will be the responsibility of the local authority to ensure that these are fully available to P. With DOLs across all settings authorised, effectively, by an AMCP, there will be a right of appeal / review to a (new) Tribunal and then, ultimately, to the Court of Protection. Routine cases of DOL in the community would no longer always need Court applications, therefore, but to make the appeals “meaningful”, the Law Commission propose that a local authority should be required to refer Restrictive Care and Treatment cases to the Tribunal automatically, if there has been no appeal within a particular period (chapter 11).
Supportive Care – the “protective outer layer”

  • Applies to everywhere except Hospitals and the family home (ie care homes, supported living and shared lives).
  • Is “intended to provide suitable protection for those people who are in a vulnerable position, but not yet subject to restrictive forms of care and treatment (including DOL), in other words… a preventative set of safeguards…” (par 6.2)
  • Would apply to a person who lacks capacity and is moving into the relevant accommodation or someone in such accommodation who subsequently loses capacity.
  • The safeguards would be (para 6.46):-
    • The local authority must “keep under review the person’s health and care arrangements, and whether a referral to the restrictive care and treatment scheme is required”
    • Care plans must include a record of capacity and best interests and any restrictions imposed (including confirmation that they are in P’s best interests)
    • The local authority would have discretion to appoint an AMCP to oversee the case
    • An advocate or an appropriate person must be appointed, who would be responsible for ensuring that P has access to the reviews or appeals process (to the Tribunal or the Court).
  • Where pressure is brought to bear on resource allocation, as a result of the advocacy on P’s behalf for less restrictive care, the Law Commission recognises that “best interests” cannot secure preferential treatment as against someone who has capacity, but expects that “the division between care planning (which is not, broadly speaking a best interests process) and decisions taken on behalf of an adult in the context of care delivery (which is a best interests process) will need to be more carefully delineated” (para 6.60).

Restrictive Care and Treatment – the new (wider) DOLS

  • Should apply to those who lack decision making capacity as a result of a disturbance or impairment in the functioning of the mind or brain (ie in line with the MCA, rather than the MHA, as DOLS was).
  • Should include (but not be limited to) cases where ANY of the following apply (para 7.31):
    • P is under continuous or complete control OR P is not free to leave
    • P is not allowed to leave the premises unaccompanied, or is not physically able to without assistance
    • Barriers are used to limit P’s access to parts of the premises
    • P’s actions are controlled by physical force, restraint or medication, other than in emergencies
    • P objects to care or treatment (verbally or physically)
    • Significant restrictions are in place on P’s diet, clothing, access to the community or contact with relatives, carers or friends (other than generally applicable rules eg about visiting hours).
  • In addition to the protection of the Supportive Care scheme, meeting the criteria for Restrictive Care and Treatment will mean that an AMCP should have overall responsibility for the case, arranging assessments, whether independently or by those already involved in P’s care. The AMCP will have direct responsibility for the decision whether to authorise the Restrictive Care and Treatment, including a DOL where this is explicitly justified by the care plan (para 6.168), with objective medical expertise, for up to 12 months, as well as power to make recommendations or impose conditions.
  • After authorisation, a different AMCP would be allocated to keep the case under ongoing review.
  • The local authority’s role as supervisory body under DOLS is effectively taken over by the AMCP decision making, but the local authority does still have responsibility to ensure that the AMCP, and appropriate advocacy support, is properly appointed.
  • P has a right to appeal to a First Tier Tribunal, and then to an Upper Tribunal or to the Court of Protection, with the local authority required to make automatic referrals to the Tribunal periodically in any event.
  • In urgent cases, the AMCP can authorise Restrictive Care and Treatment (including a DOL) for up to 7 days, which can be extended one for up to another 7 days (para 6.202). The Law Commission felt that the enabling of care providers to self-authorise is “one of the least satisfactory elements of the DOLS”, so while Hospitals still effectively have this power for 28 days (see below) it appears that care homes etc will be wholly dependent on an AMCP.

Deprivation of Liberty in a family home

  • The Law Commission recognise the possibility of a DOL in a family home, and so some form of scheme is required to scrutinise and authorise this, controversial as this may be.
  • The Law Commission propose the same safeguards as under Restrictive Care and Treatment above – ie with the onus very much on the AMCP appointed by the local authority – but this should only be triggered in a domestic setting by the existence of a DOL, rather than the deliberately wider non exhaustive list of factors for other settings set out above.
  • For this reason, the case law and disputes over where to draw the line to define a DOL and how to apply this in a family home will not disappear under the Law Commission proposals.

Hospital Scheme

  • In hospitals (and in palliative care) shorter admissions, typically, justify a proportionate approach to the authorisation of any DOL – though the Law Commission is loud and clear that the Cheshire West acid test applies equally there (including in Intensive Care) as anywhere else (para 8.11-8.12).
  • The Law Commission endorses the advice in the recent Law Society Guidance that immediate provision of life sustaining treatment in an emergency will not be considered a DOL, but following the initial emergency the risk of a DOL increases (para 8.19).
  • Where there is “an immediate need for a DOL” to provide care or treatment, and this is proportionate and in P’s best interests, a doctor can authorise a DOL for up to 28 days (para 8.24).
  • With strong echoes of the MHA system, hospital managers would then appoint a person as the “Responsible Clinician” (RC) and notify the local authority, to put them on notice of the possible need for an AMCP after 28 days.
  • The RC would ensure that an appropriate, written care plan was in place, after appropriate consultation with P / others, that an advocate or appropriate person is appointed for P, and would continue to review whether P still meets the criteria throughout the period authorised.
  • After the initial 28 days, further DOL (for up to 12 months) can only be authorised by an AMCP, during which time responsibility continues to rest with the RC while P is an in patient.
  • An application to the Court of Protection can be made to review the case.
Other Issues

The Law Commission also proposes that:

  • All the “Protective Care” schemes would extend to 16-18 year olds, extinguishing the anomaly in age between DOLS and the MCA (para 15.11).
  • Greater investment should be made in “supported decision-making” – including appointment of a “supporter” in appropriate cases, as well as an advocate (chapter 12), alongside much more use where possible of advanced decision making (chapter 13).
  • The “best interests” checklist under MCA s4 should be amended to ensure that P’s wishes and feelings are given priority and respected wherever possible (para 12.47).
  • The uncertain interface between DOLS and the Mental Health Act is to be addressed by proposed amendments to the MHA to provide for care to patients who lack capacity but do not necessarily fall within the compulsory detention powers (chapter 10).
  • The CQC would continue to have responsibility for monitoring the use of the laws on DOL, as they currently have for DOLS (but with the potential for restrictive Care and Treatment to be authorised in a family home by an AMCP, this will extend the CQC’s remit to a domestic setting, and may be controversial) (chapter 14).
  • The law should be changed so that the vast majority of deaths under a “Restrictive Care and Treatment” authorisation would be excluded from the need for an Inquest (para 15.63).
  • It “seems unfair”, they say, that someone who lacks capacity who is being deprived of liberty by the state is also charged for that accommodation, particularly where the decision to place them in that accommodation is made by the state, but the Law Commission stops short of a concrete proposal to make all such care free of charge, given the resource implications! (para 15.71).

Funding and Resources

This raises one of the obvious questions about the proposals – funding and resources. BIAs are already a fairly scarce and precious resource in the Post Cheshire world and their enhanced role (as AMCP) is absolutely central to the much wider schemes under the banner of Protective Care. With the law of supply and demand, it seems likely to be a good time to be in business as a BIA / AMCP (or a supplier of BIA / AMCP training).

There is a similar point about the huge weight put on vastly extending advocacy support to P, which is already sometimes difficult to secure under the current system.

As well, there will be the need to establish and maintain the new Tribunal system envisaged, though the extent to which this might have a costs benefit for the Court of Protection is unclear.

In the big picture, of course, implementation of any reforms with significant resource implications is going to depend on support from the Treasury, as much as from other parts of government or the consultees across the health and social care system. The Impact Assessment, published some time later on 11 August 2015, puts the cost of implementation of the Law Commission’s proposals at around £1.8 billion over 10 years (but needs to be seen in context, as it calculates the cost of fully funding the current system to do what is now required of it at £11.8 billion!)”

View the Impact Assessment here

What next?

Following Government intervention, the timeline for publication of draft legislation has been brought forward to “the end of 2016”, but even with full and prompt support from the powers that be it is unlikely to be implemented until 2018.

Even then, it is clear that the Law Commission will not make the “post Cheshire” problems go away – the definition of DOL will not be curtailed, and if anything the schemes they propose to ensure lawful authorisation of DOL go far beyond the current approach and aim to offer supportive intervention to a much wider group of people.

The details are a little sketchy at the moment on the process and evidence that will be required for authorisation of a DOL under the Restrictive Care and Treatment Scheme (or the Hospital Scheme after the initial 28 days). But there is no reason to think that the obviously relevant evidence (lack of relevant capacity, the care plan being a DOL, imputable to the state, no less restrictive options and being in P’s interests, assessed after proper consultation with P and others) is going to change.

Of course, much of this is about good practice and appropriate care planning, and should be happening regardless of the new proposals for independent scrutiny.

What now?

The Law Commission consultation is open until 2 November 2015.

Watch the recording of our webinar on 15 July 2015.

The regular regional MCA / DOLS forums we host in Nottingham, Birmingham, Exeter and Manchester will be discussing the proposed reforms at their meetings over the next few months, and please do contact us for details if you would like to attend.

We will be preparing a response to the Consultation based on what our clients and contacts all over the country are telling us, and if you would like to tell us what you think, or share your Consultation response, we would be delighted to hear from you.

In the meantime, there is no basis whatsoever to await reform of the law as a reason for inaction on the cases of people who are currently DOL. In care homes and hospitals those cases must be referred to the DOLS system, and in all other settings, applications must be made promptly to the Court of Protection. We would be pleased to discuss how we can help with this

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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