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LiPS service? or real reform, soon…?

15 March 2018

The Government has promised to implement, virtually in full, the Law Commission proposals for reform of the law on deprivation of liberty and the Mental Capacity Act. But when will it happen?

On 14 March 2018 the government formally responded to the Law Commission’s final proposals nearly exactly a year earlier (published 13 March 2017).

Essentially, the government accepts almost the whole package of reforms, so we can look forward to some elements likely to be universally welcome:

  • a single scheme (called Liberty Protection Safeguards - 'LPS') covering patients and services users over 16 (rather than 18 for the current Deprivation of Liberty Safeguards - 'DOLS')
  • applicable in all settings (rather than just care homes and hospitals, like DOLS)
  • covering multiple settings for each patient / service user ('P') (rather than needing a separate authorisation for each different place - with potentially absurd consequences, for example with respite care)
  • making greater allowance for 'fluctuating capacity'
  • and, crucially, with a more streamlined process, allowing greater use of equivalent and previous assessments.

Some aspects may be potentially more controversial - pragmatically diluting the safeguards (or making them more proportionate, depending on your point of view) notably by:

  • allowing authorisations for up to three years (after an initial maximum period of 12 months, followed by a maximum 12 months renewal – ie 12, then 12, then 36 months)
  • provision for the independent scrutiny (the new Approved Mental Capacity Practitioner role – a “beefed up BIA”) only in some cases, rather than universally, where:
    • P is objecting to the placement; or
    • the deprivation of liberty is primarily for the protection of others rather than for P’s best interests (itself an approach that some may feel difficult to reconcile with the fundamental ethos of the MCA).

The NHS will note that hospitals and CCGs respectively will acquire responsibility for authorisation of any DoL in a hospital setting or for any DoL in a CHC package (albeit it is proposed to widen the explicit provision allowing medical treatment in emergency). 

Private sector providers will be very interested in the proposed explicit provision of a direct right of compensation claim to be brought against them for any unlawful DoL where caused by “arrangements put in place by or on behalf of a private care provider enabling the care or treatment of a person”, applying the principles of Human Rights Act claims.

More widely, the government has also adopted the recommendations for amendments to the Mental Capacity Act as a whole, beyond the narrow issues of deprivation of liberty, more notably:

  • greater weight on advanced decisions by patients while they have capacity to do so
  • a restriction on the availability of the 'defence' under s5 MCA (no liability if you reasonably take a step or make a decision in someone’s best interests when you reasonably think they lack capacity for that decision) so it will only apply for specified serious decisions (long term accommodation, restrictions on contact, covert medication, serious medical treatment or treatment against P’s wishes) if there is a written record of the decision making covering a prescriptive list of issues
  • greater weight to be put on P’s own wishes, in best interests decision making. The Law Commission proposals framed this in terms of a presumption that P’s wishes should be determinative unless established otherwise, and the draft Bill they provided puts it that the decision maker “in making the determination must give particular weight to any wishes and feelings ascertained”. The government response accepts the proposal, but puts it in terms that “taking past and present wishes and feelings into account already represents good care practice. We therefore agree that this should be enshrined in law”. However, simply listing wishes and feelings as a factor to take into account in a best interests decision represents the law as it is (MCA s4(6)), though of course a string of judgments has put ever greater emphasis on this. The Law Commission proposal and draft bill goes further, to a presumption that wishes are determinative, which would, we think, significantly change practice and the legal approach. 

The government also accepts the need for an updated Code of Practice to accompany the MCA. The only recommendation rejected is the suggestion of statutory codification of the law relating to children (under 16) and decision making capacity - ie Gillick competence etc - for which there is no appetite.

And the various recommendations about the interface between MCA/DOLS and the Mental Health Act ('MHA') are deferred to the current ongoing review of the MHA (currently in phase 1 to “Spring 2018”), which may or may not help to avoid a fragmented, piecemeal approach.

Otherwise, we are promised wholesale reforms, and the “pressing urgency” seems to be accepted. However, some will be cautious of holding their breath, since the government goes on that the reforms must “fit with the conditions and future direction of the health and social care sector, so we will continue to work through the detail of the recommendations and engage further with stakeholders especially on implementation”. On the timescale, we can expect “legislation to implement the model when parliamentary time allows”, which feels a fairly speculative deadline, now more than ever, and may well be post Brexit, in practice.

Finally, practitioners will have an eye on the resourcing and support for implementation of any reforms. The Law Commission impact assessment puts the anticipated cost of these proposals at around £2 billion, and makes that look attractive compared to the benefits it asserts valued at around £8 billion (mostly in avoiding potential liabilities for unlawful DoL compensation, and in quality of life improvement for those benefiting from the new safeguards) and contrasted with the anticipated cost of around £16 billion for proper implementation of the DoLS system as it stands. But, even so, finding £2 billion for implementation may also be a challenge, even if that does prove to be the right figure.

Despite the government’s embrace of the recommendations, there is clearly going to be more work, more consultation, and then some parliamentary debate before legislation, which then would be likely to have a reasonable period for transition and implementation to allow for training etc. On any view this is likely to take years rather than months, and the process itself may expose and draw more attention to some of the issues in the system.

In the meantime, and for the foreseeable future, we need to deal with the challenges before us with the tools that we have.

If you’d like to discuss any of the issues or how this will affect your organisation, please do not hesitate to contact us.

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