Law Commission for England and Wales publishes Interim Statement on Mental Capacity and Deprivation of Liberty
May 25, 2016
BY Kevin Zakreski
Since 2014, the Law Commission for England and Wales has been carrying out a project on mental capacity and deprivation of liberty. The project is examining a specific piece of delegated legislation, called the deprivation of liberty safeguards (found in schedule A1 and schedule 1A to the Mental Capacity Act 2005), which “aim to protect people who lack mental capacity, but who need to be deprived of liberty so they can be given care and treatment in a hospital or care home.” This is an exception to the ordinary rule in England and Wales, which only permits such infringement of a person’s right to liberty by way of an order from the Court of Protection.
In 2015, the law commission published a consultation paper (PDF), which proposed replacing the deprivation of liberty safeguards with a legislative scheme of “protective care.” Today, the commission has published an interim statement (PDF), which is “intended to update stakeholders on the key issues that have emerged at consultation and some of our initial conclusions.”
The major initial conclusion is adoption of new legislation to implement the commission’s concept of protective care. “Broadly speaking,” the commission notes, “protective care had three aspects: the supportive care scheme, the restrictive care and treatment scheme, and the hospitals and palliative care scheme.”
The broad features of each aspect are as follows:
- Supportive care. “The purpose of supportive care was to recognise the individual’s article 8 ECHR rights to private and family life, and provide protection for people whose rights were at risk, but who did not require forms of care and treatment which either restricted or deprived them of their liberty.” It would apply to “people lacking capacity to decide their living arrangements, and who were moving into, or already living in, a care home, supported living or shared lives accommodation.”
- Restrictive care. This is the commission’s proposed “direct replacement” for the deprivation of liberty safeguards. Like supportive care, it would apply to “people lacking capacity to decide their living arrangements, and who were moving into, or already living in, care home, supported living or shared lives accommodation.” But restrictive care would only be engaged “where a deprivation of liberty or some other form of restrictive care or treatment was being proposed.” “Referrals for this scheme,” noted the commission, “would be made to an Approved Mental Capacity Professional, who would be required to undertake an assessment, or arrange for an assessment to be completed by another professional (such as the person’s allocated social worker or nurse), and then decide whether to authorise a deprivation of liberty.” Further, “[a]ny person assessed as eligible for this scheme would be provided with a number of safeguards. For example, the person’s ongoing care and treatment would be overseen by an Approved Mental Capacity Professional who would need to confirm that regular review meetings were taking place (involving the family), any conditions were being implemented, and an advocate (or appropriate person) and representative had been appointed and were providing ongoing support. The person (as well as others, such as family members and advocates) would have rights to seek reviews of the care and treatment and apply to the First-tier Tribunal to challenge the restrictive care and treatment.”
- Hospitals and palliative care. This special scheme would only apply “to authorise deprivation of liberty in hospital and palliative care settings.” Under it, “[t]he person could be deprived of liberty for up to 28 days based on the report of a clinician (and further certified by an independent doctor). During this period, a named clinician must be appointed, and the person would have rights to advocacy (or an appropriate person). The person (as well as others, such as family members and advocates) would have rights to seek reviews of the treatment plan and apply to the First-tier Tribunal. Deprivations of liberty beyond 28 days would require the authorisation of an Approved Mental Capacity Professional.”
The interim statement “is not a consultation document,” but the commission is seeking further views “on the name that should be given to the new scheme.” The issue is described as follows:
Most consultees felt that the term “deprivation of liberty safeguards” was at best unhelpful and, at worst, meant that people were being denied access to legal rights. Some consultees were similarly critical of our proposed new terminology, including the label “protective care.” A number of consultees suggested the name “liberty safeguards,” whilst the next favourite was “capacity safeguards.” However, there was no consensus on the terminology that should be adopted.
The commission is accepting comments on this issue until 23 June 2016. It plans to publish its final report, with draft legislation, in December 2016.