The Law Commission has published its final report on Mental Capacity and Deprivation of Liberty, together with the Mental Capacity (Amendment) Bill.

The Law Commission was invited to consider proposals for a statutory scheme which would apply to those in settings where DOLS cannot be used (for example, supported living, or those in their own homes) where their care arrangements deprive them of their liberty but are necessary in their best interests. At present such arrangements have to be authorised by the Court of Protection (generally using the "streamlined" procedure set out in Practice Direction 10AA). In September 2014 the project was extended to include reform of the DOLS process itself.

On 17th June 2015, it was announced in parliament that the Law Commission’s programme would be accelerated,with legislation planned for 2016-ayear earlier than anticipated

On 7 July 2015 the Law Commission published its consultation paper “Mental Capacity and Deprivation of Liberty”

The key proposal was the replacement of DOLS with a new scheme called “protective care”, although the new scheme would apply to a wider range of individuals than DOLS. This sub-divides into “supportive care”, and “restrictive care and treatment”. The consultation was extensive. In its interim position statement the Commission reaffirmed the need for legislation. One of the most significant proposals concern reforms to s4 MCA 2005, to give greater priority to the wishes and feelings of the person lacking capacity.

In its final report the Commission claims that “the recommendations set out in this report would create a clear and accessible scheme for authorizing arrangements which give rise to a deprivation of a person’s liberty, which is capable of delivering practical and effective Article 5 rights” (1.7). It has also stressed the importance of Article 8 rights also highlighted as those detained for the purpose of Article 5 remain entitled to the other fundamental rights and freedoms.

The recommended scheme is called the Liberty Protection Safeguards.

It would:

- Apply to England and Wales

- Potentially apply to any setting

- Be “portable” so that one authorization can cover care and treatment at more than one setting

- Apply to 16 and 17 years olds

- “Frontload” the decision-making so that the “responsible body” (rather than the provider of care) authorizes the arrangements which may give rise to a person’s liberty. This is with the aim of imposing discipline on the care and treatment planning process.

- Be supported by a revised Code of Practice.

The “responsible body” will be

- the hospital manager (usually the relevant Trust) where arrangements are to be carried out primarily in hospital;

- the relevant CCG or health board where the arrangements are carried out via NHS continuing healthcare; or in other cases

- the responsible local authority.

The report contains a helpful flowchart (at page 51) which sets out the steps in the new process. Once the responsible body has decided to authorize the arrangements it will appoint and advocate or “appropriate person” who will represent the person both during and after the authorization process (effectively taking on the role of the relevant person’s representative).

Three (down from 6) assessments take place. These may be carried out by professionals involved in the person’s care and treatment. The assessments consider:

- “unsoundness of mind” for the purpose of Article 5 (somewhat broader than the current requirement)

- capacity – “to consent to the care and treatment arrangements which would give rise to a deprivation of that person’s liberty” (this can include fluctuating capacity, as long as capacity is only likely to be regained for “a short period”).

- Best interests- “necessary and proportionate” having regard to the likelihood of harm to the person if arrangements not in place and the seriousness and to the likelihood of harm to other individuals if arrangements not in place and the seriousness of that harm. Consultation with others (set out in recommendation 15) must take place unless it is not practicable or appropriate (somewhat strengthening the requirement in s4(7) MCA).

The Commission consider that the “necessary and proportionate” test will encourage a proper consideration of the person’s Article 8 rights – and should (for example) ensure that the assessor considers whether the best interests of someone who wishes to remain at home but for whom round-the-clock care is not available might be met by remaining at home with a lower level of care.

Regulations will govern the assessments but those assessing must have “the appropriate experience and knowledge”; there must be at least two and they should be independent of each other (9.74)- this would be defined in the new Code and may mean that they should not, for example, be in a line management relationship.

A review “on the papers” will be carried out by someone not involved with the person’s care and treatment but who may work for the responsible authority (10.24) to confirm it is reasonable to conclude the conditions are met.

Only in two cases is there a requirement for involvement by someone outside the responsible body, namely an Approved Mental Capacity Practitioner, who must meet the person- where the person does not wish to reside or received treatment at the particular place OR the authorization is necessary because of risk to others.

Recommendation 14 would remove time limit for equivalent assessments, so old assessments could be used as long as this is “reasonable”.

The “teeth”, the Commission claims, are added by some- important- proposed reforms to the MCA itself. These provide that:

- Section 4 MCA to be amended to require “particular weight: to be given to wishes and feelings and

- Exclusion from the defence in s5 for certain decisions if someone acting in a professional capacity or for remuneration has not prepared a written record containing specific information.

- A specific ability to claim civil damages from private providers.

The proposed amendments in relation to s5, if these became law, would obviate the need to make applications to court in all cases involving serious medical treatment; or moving the person to long term accommodation (generally although not always seen as requiring an application, following Hillingdon v Neary).

Both P and the advocate/appropriate person could bring challenges under s21A and the Commission is working on the basis that non –means tested legal aid would be available (which would, if correct, bring an end to the current disparity between those detained under DOLS and those detained under ‘welfare orders’ under s16 MCA.

There will be no automatic referrals and the Commission leaves the decision as to where challenges should be heard to government; but does recommend “ticketing” some Tribunal judges to hear s21A cases- which it considers may have a somewhat narrower focus.

In terms of the MHA interface, the Liberty Protection Order would not apply to arrangements in hospital for the purpose of assessing or providing treatment for mental disorder within meaning of MHA- but can authorize arrangements in hospital for the purpose of providing medical treatment for those with learning disability who do not fall within the MHA; and can be used to provide treatment for physical disorder to those detained under the MHA. The new scheme could also be used for those on CTOs, conditional discharges, leave or guardianship as long as the requirements do not conflict.

The new scheme would undoubtedly provide a lighter touch, and would represent a significant saving. Few will mourn DOLS or the Re X process; although the loss of independent best interests assessors will be felt. The Commission argues – with some justification – that the current position simply means people do not benefit from any safeguards and a simpler scheme will provide –albeit somewhat diluted- rights to a much larger number. It will be interesting to see whether parliamentary time will now be made available for it.