Deprivation of Liberty: All Change?
Bill Dunkerley
20/05/2019

Issues surrounding individual service users’ rights to liberty and security, and the extent to which these may conflict with their care needs, have been a source of ongoing concern for care providers for a number of years.

Although the last decade has already seen legislative changes, court rulings and judicial commentary, further revisions have recently been enacted as a result of the Mental Capacity (Amendment) Act 2019, which received Royal Assent on 16 May.

Development of the Deprivation of Liberty Safeguards

Article 5 of the European Convention on Human Rights (ECHR) confirms the right of every person to liberty and security of their person, and prevents their unlawful detention. Deprivation of an individual’s liberty is however permitted in specified circumstances, including where the detainee is of an ‘unsound mind’ (Article 5(1)(e)). Any such detention must be undertaken, “in accordance with a procedure prescribed by the law.”

This right was incorporated into English law by (amongst other legislation) the Mental Capacity Act 2005, which permits the deprivation of an individual’s liberty if that person lacks capacity. The relevant test being whether, “at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.” The Act required any measures imposed to be in the best interests of the person who lacks capacity.

Despite the provisions of the Mental Capacity Act, the European Court of Human Rights considered in the Bournewood case that there remained a lack of procedural safeguards for those deprived of their liberty, as required by Article 5. For example, it considered that there was a lack of clarity as to who was able to authorise deprivations, and where responsibility rested for undertaking continuing clinical reviews and assessments once someone had been deprived of their liberty.

To address the ‘Bournewood gap’ the Deprivation of Liberty Safeguards (‘DOLS’) were introduced in 2009 as an amendment to the Mental Capacity Act, and prescribed the procedure by which impositions on liberty were to be authorised by the state. The Safeguards however only applied to deprivations occurring in hospital or registered care/ nursing homes, with any deprivation outside of these settings only capable of being authorised by the Court of Protection.

Further changes came in 2014 when the Supreme Court widened the interpretation and scope as to what may amount to a deprivation of liberty and decided in the case of P v Cheshire West that all those who were:

  1. under continual supervision and control; and
  2. lacked freedom to leave the place where they lived

were being deprived of their liberty. This wide definition conceivably included any measures taken which adversely affected an individual’s freedom, but which were otherwise deemed to be in that individual’s best interests. The potential for routine residential or nursing care to fall within this definition was therefore significant.

Practical Implications
Any deprivation imposed outside the prescribed DOLS procedure ran the risk of amounting to an unlawful deprivation of liberty, with all the consequential financial and legal implications flowing from this. The incentive for care providers on a day to day basis therefore was to err on the side of caution and apply for authorisation in every instance that restrictions were required, in order to avoid being accused of an unlawful deprivation. This cautious approach (which had been expressly endorsed by the Court in P v Cheshire West) resulted in an exponential increase in the number of DOLS applications submitted. The sudden increase in the number of submissions created a significant backlog of pending decisions within local authorities which often took many months, if not longer, to be considered and returned.

In addition to the increased turnaround time for submitted applications, criticisms were also raised that the authorisation process itself was overly bureaucratic and convoluted. For example, the 2013- 14 report of the House of Lords Select Committee on the Mental Capacity Act 2005 was critical of the procedure and considered that vulnerable adults were being failed by an Act which had been designed to protect and empower them, with many individuals likely being deprived of their liberty outside the protection of the law. The report considered that the existing legislation was, “not fit for purpose.”

As a result of the above criticisms and increasing delays within the authorisation system the Law Commission was requested to review arrangements, its report being published in March 2017. In summary the Commission recommended that the DOLS system be replaced as it was, “overly technical and legalistic, and too often failed to achieve any positive outcomes for the person concerned or their family.” It also considered that the best interests assessment often merely rubber stamped the decision already taken by the relevant care team, with the implication that the DOLS process was, “not really a safeguard.”

The Commission concluded that Article 5, “must be practical and effective. It is not acceptable to continue with the current system where many people’s rights have become theoretical and illusory,” and recommended that the DOLS scheme be replaced with a new regime – the Liberty Protection Safeguards (‘LPS’). The LPS were proposed as a system of ‘protective care’ to sit alongside and compliment the existing health and social care system and to streamline the process of obtaining authorisations, as opposed to imposing an additional layer of bureaucracy.

The Commission proposed that the LPS include: enhanced rights to advocacy; periodic checks on the care arrangements of those affected; greater and more express consideration of an individual’s human rights; and whether a deprivation of their liberty is necessary and proportionate.

Mental Capacity (Amendment) Act 2019
Following the Government’s positive response to the Commission’s report in March 2018, in July 2018 the Mental Capacity (Amendment) Bill was published which broadly sought to implement the Commission’s recommendations and proceed towards a system of Liberty Protection Safeguards. It should be noted however that the Act now in force does not refer to the phrase ‘liberty protection safeguards.’

Despite having now received Royal Assent, the draft Bill was subject to a number of revisions prior to its commencement. For example, the Law Commission suggested that responsibility for securing the authorisation (and treatment) which deprived individuals of their liberty in private care should rest with the relevant registered care manager. Concerns were however raised within the sector in terms not only that managers may lack the necessary training to determine such issues, but also that this process could place home managers into a conflict situation, having to consider granting an application for an individual in a home for which they were responsible.

Whilst revisions have reduced the role of home managers from the Commission’s initial suggestions, the Act still requires home managers to identify those who may lack capacity and whose care requires them to be restricted. As such the potential for a conflict of interest to arise remains.

Likewise, the Act replaces the Law Commission’s initial suggestion that deprivations required someone to be of ‘unsound mind’ with the requirement that they have a ‘mental disorder.’ Pending introduction of codes of practice and guidance, this change could easily lead to satellite litigation as courts attempt to interpret the provision in a manner which is compliant with Article 5 (which itself refers to ‘unsound mind’).

The Act also introduces other changes which mark a departure from both the previous Deprivation of Liberty Safeguard regime and the Law Commission’s initial proposals. For example:

  • The distinction between deprivations within a care setting and elsewhere has been abandoned, with one process applicable across all providers (private and public);
  • Applications can now be submitted in respect of anyone aged over 16 years, as opposed to the previous minimum age of 18;
  • An express requirement that service users be consulted in relation to any proposed restrictions. The extent to which a service user with advanced dementia is capable of expressing an informed view is however questionable;
  • Removal of the requirement that an authorisation must be in an individual’s best interests. The Act requires that arrangements are necessary to prevent harm to the cared-for person and are proportionate in relation to the likelihood and seriousness of harm to that person; and
  • Authorisations are to last for an initial period of 12 months. Subsequent renewals thereafter may last for up to three years before further review is required, therefore tripling the current amount of time that people can be deprived of their liberty without re-assessment.

Conclusion
The changes contained within the Mental Capacity (Amendment) Act 2019 are on the whole to be welcomed, on the basis that they attempt to simplify and clarify a regime which had evolved as a result of numerous legislative provisions and discrete decided cases.

It is also to be hoped that the new Liberty Protection Safeguards not only assist care providers with the practical day-to-day administration of deprivations, but ensure that any such restrictions also serve the needs and requirements of those most affected – the service users.

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