Policy paper

Department of Health response to the Law Commission's consultation on mental capacity and deprivation of liberty

Updated 3 April 2018

Background to the Law Commission’s work

Select Committees of both Houses of Parliament have criticised the Deprivation of Liberty Safeguards (DoLS) and called for the system to be reviewed. In addition, the Supreme Court’s judgment in the case of Cheshire West has led to a 10 fold increase in DoLS applications.

In light of this, the Department of Health decided to fund the Law Commission to undertake a fundamental review of the DoLS legislation. This began in autumn 2014.

The Law Commission’s 4 month consultation on its initial proposals has received positive engagement from professionals, carers and service users across the country. The department would like to thank those individuals who have taken the time to provide their insight.

The department’s approach to the Law Commission’s review

In our commissioning letter of 4 November 2014, the department described its expectation that the Law Commission’s approach should be:

• rooted in the Mental Capacity Act (the MCA)
• integrated into existing health and care practices, as a means of realising joined-up person-centred care and as a means of ensuring any proposals can actually be implemented, including in terms of cost-effectiveness

The department remains committed to the Law Commission’s work. Its importance is apparent given the continuing implications of the Supreme Court judgment in Cheshire West. To this end we are grateful to the Law Commission for agreeing to accelerate this project so that it completes (in the form of a draft Bill and detailed policy proposals) by the end of December 2016; with a provisional report due in spring 2016.

The question of the need for legislative change

The department will be waiting for the Law Commission’s post-consultation proposals before deciding whether legislative change is the best way forward.

We note that the Law Commission is currently of the firm opinion that legislative change is required. However, it would not be appropriate for the department to make decisions on legislative change until the Law Commission’s final recommendations are made and, most importantly, until we have heard the views of stakeholders as expressed through this consultation.

However, the department is keen to be of assistance to the Law Commission. Therefore, with the important caveats noted above, the rest of this document outlines our views on the Law Commission’s initial proposals.

The department has liaised across other government departments in producing this response, including with the Ministry of Justice and the Department for Communities and Local Government.

The department’s overall response to the Law Commission’s proposals

Hereafter, the Law Commission’s provisional proposals are referred to as ‘the scheme’.

The top priority for the department is that any scheme delivers real, tangible benefits for individuals who are eligible and for their families. The scheme should not be about ensuring legal compliance purely for the sake of legal compliance. We must not lose sight of the individual that lacks capacity.

The scheme should be as accessible and user-friendly/family-friendly as possible. This may in cases mean a move away from formal legalistic approaches and towards an emphasis on approaches more demonstratively rooted in ‘normal’ health and care structures / arrangements. Individuals and their families will likely feel more comfortable with such an approach and so more likely engage with the scheme.

Of clear importance also are issues of cost-effectiveness and value for money. The financial situation in the public sector and especially in the NHS, local authorities and social care is challenging. Every pound of taxpayer’s money spent must be targeted to achieve maximum benefit for the service user. Unnecessary bureaucracy must be eliminated.

In effect, this translates to 3 ‘tests’ that the department has applied to the different components of the Law Commission’s proposals.

• does the proposal realise real benefits for the person who may lack capacity and/or their family?
• does the proposal represent a good use of public funding, or would this money, if spent elsewhere in the health and care system, realise greater benefits for service users and/or their family?
• viewed through the individual’s eyes and those of their family, would the proposal make it easier and more likely for that individual and/or their family to engage with the scheme, realising the outcomes they would wish?

The department has concerns that elements of the Law Commission’s proposals do not meet these 3 tests.

Related to this - and another key priority - is ensuring any scheme fits well within the current health and care system and can be implemented by professionals in a manner that ensures their time is best directed to service-user care and support. The danger in considering an issue in isolation, in this case, the current challenges facing DoLS, is that the ‘solution’ may also be formulated in isolation. If so, when translated to practice it may cause unhelpful, confusing, potentially financially wasteful interfaces and most importantly, a disjointed experience for the service user.

Elements of the Law Commission’s scheme pay good attention to the context in which DoLS sits, but we are concerned that the proposed system is unnecessarily complex.

The department’s response to specific Law Commission proposals

Supportive care scheme

Mental capacity assessments should be performed, where appropriate, as part of core care planning and before decisions about accommodation are reached. Ensuring better awareness of the MCA is a key concern for the department.

Furthermore, the department has stressed throughout the response to the Supreme Court judgment that attention be paid, as a first step, to reducing restrictions to try and avoid any deprivation of liberty occurring. This adheres to the least restrictive principle of the MCA.

Similarly, the department would stress the importance of the empowering ethos of the MCA and that professionals focus not solely on providing the safest possible care/treatment plan but take account of the wishes and preferences of the individual, their right under the MCA to make unwise decisions and the importance of individuals being active participants in decisions about their care.

It is clear that the Law Commission shares the department’s views and that this is the basis for its proposals for a ‘supportive care scheme’. However, in its discussion of supportive care, the Law Commission notes, “in the vast majority of cases these assessments should have already taken place… for example under the Care Act”.

The department would question whether more legislation is the best approach to ensuring existing legislation is properly implemented - or whether greater support for frontline practice and efforts designed to address cultural approaches that are not in keeping with the MCA may be more appropriate.

Restrictive care and treatment scheme

The department recognises that one of the perceived difficulties of DoLS is the need for front-line practitioners to make an essentially legal judgment as to whether the individual in front of them is indeed ‘deprived of their liberty’. Part of the answer to this may be providing more confidence to practitioners that, providing their decision is well-reasoned and recorded, they are protected from action against them.

The Law Commission’s proposal to assist in this respect is for an ‘illustrative list’ to determine eligibility for the scheme. Clearly with such a list it would be important that no individual ‘falls between the gaps’ and that professionals can use their judgment to ensure any individual they feel is eligible for the scheme has access to it. The department will be keen to understand respondents’ views as to the merits of such a list.

We support the Law Commission’s endorsement of the expertise and value of Best Interest Assessors (BIAs). The Law Commission’s proposed Approved Mental Capacity Professional (AMCP) has generated significant debate.

The concept of providing more scope for professionals already involved in the care of the individual to perform a best interests assessment (through delegation by and under the supervision of an AMCP) could be a sensible and proportionate response. This is especially the case in the post-Supreme Court situation where many more individuals are considered to be ‘deprived of their liberty’, in many of which cases there will be clear consensus across all parties that the best interests test is satisfied.

The Chief Social Worker for Adults, Lyn Romeo, strongly supports the model of an AMCP and the ability of social workers to perform this role.

The department is glad to see the Law Commission’s assertion that the restrictive care and treatment scheme would involve “no parallel processes or documentation as everything would be contained within the overall Care Act, Mental Capacity Act or NHS continuing health care processes”. This is precisely the kind of integration into the existing health and care system we wish to see.

The department is aware that some stakeholders are frustrated by the possible need for separate or new assessments of whether an individual has a mental health disorder for the purposes of DoLS. The relative benefits of such a requirement clearly depend on the nature of the mental health disorder. With this caveat though, the department is supportive of providing more scope to use existing medical evidence (subject to a judgment of validity), for example, in the cases where a mental disorder is permanent and degenerative.

The current DoLS system applies to care homes and hospital settings. Potential deprivations of liberty in so-called ‘community settings’ such as supported living arrangements need to be authorised through an application to the Court of Protection. Subsequent to the Supreme Court judgment, the Court of Protection has implemented a ‘streamlined’ paper-based scheme for such applications that do not trigger an oral hearing. This, the ‘Re X’ process, has suffered from confusion following a Court of Appeal hearing. However, this confusion may have recently been in part clarified through judgments in the Court of Protection. The department is keen to see how successful Re X may be.

Nevertheless, the department’s policy is to ensure that individuals are able to receive care and treatment close to their family, friends and communities. Furthermore, we understand that for many, an application to court can be a stressful and potentially distressing experience. For these reasons, the department is minded to agree that any proposed scheme should be designed so as to include community settings.

Protective care in hospital settings and palliative care

The question of whether one single scheme for assessing and authorising deprivations of liberty across all health and care settings is appropriate or desirable has been a point of considerable debate. Some may suggest that a single scheme (or perhaps a shared language and umbrella approach) helps ensure a common understanding and approach and supports integrated care. Others highlight that a short-stay acute hospital setting and a long-stay care home are simply too diverse an environment to be satisfactorily accommodated in one framework.

The key element of the hospital scheme proposed is to allow hospitals to effectively self-authorise a deprivation of liberty for up to 28 days on the approval of a registered medical practitioner. The department is particularly keen to understand stakeholders’ views on this aspect of the Law Commission’s proposals.

We anticipate that some respondents may believe 28 days to be too long a period. Yet others may argue that DoLS do not exist in isolation and the range of other safeguards that exist in hospitals settings to protect the rights of individuals, combined with the safeguards proposed by the Law Commission, will provide a high standard of protection.

While the department reserves its judgment pending stakeholders’ views, we would urge that consideration of all the safeguards present in hospitals be taken into account before a decision is made.

Palliative and end-of-life care merits special mention. Particular care is needed to ensure that the nature of the scheme used to examine and authorise deprivations of liberty for individuals who may be in the final stages of life is sensitive to the considerable potential distress for the individual and their family. The department is committed to ensuring a good end-of-life experience for all.

The Law Commission will be well-aware that for many people (indeed, the great majority) it is nonsensical that an individual receiving excellent care, in a ‘normal’ care setting, is ‘deprived of their liberty’. The ‘over-legalisation’ of such a situation and the involvement of the state have the potential to cause great upset.

The interface between the MHA and DoLS has caused much discussion among practitioners since even before the Supreme Court judgment. To provide greater clarity on which regime is available in different situations, the department produced a new chapter for the MHA Code of Practice, published in early 2015. This guidance stated that in the relatively small number of cases where both regimes were actually available, professionals could use their judgment as to which regime was in the best interests of their patient.

The proposal to create and extend the MHA to cover all potential deprivations of liberty where treatment for a mental health disorder is being provided will, we anticipate, have elicited differing views among respondents.

While some may appreciate the apparent ‘clarity’ in removing the choice of potential legal regimes, others may prefer to maintain the option of professional judgment.

Furthermore, the department is conscious that, for many, the apparent ‘stigma’ of being subject to the MHA is considerable. Naturally, an element of the response to this is greater information and reassurance of the protection provided by the MHA.

Nevertheless, we do not underestimate this challenge, and we are keen to understand the reaction from stakeholders as to the potential for significantly more individuals to be subject to the MHA (albeit a subset of that Act). It is important that any scheme doesn’t work just in a legal sense but also in a societal and cultural sense as well.

Protective care and domestic settings

The Law Commission’s proposals correctly, in the department’s view, seek to place strong emphasis on article 8 rights to private and family life.

The potential for a deprivation of liberty attributable to the state to occur in a private domestic residence is a sensitive area. The level of state involvement to activate state responsibilities is a point of considerable legal debate.

The department is sensitive to the fact that many citizens will be keen to avoid what may be perceived as unnecessary and obtrusive state involvement in their private and family affairs.

The Law Commission’s scheme is proposed to cover domestic settings. In some cases, this option may indeed be preferable to for example, Court of Protection applications. But clarity is needed as well as reassurance that the scheme does not extend the reach of the state unnecessarily into private affairs.

Again, we suggest that wider context is important. The Law Commission’s scheme would certainly not be the only mechanism to protect individuals in domestic settings. We would suggest that consideration be given to whether existing legal and criminal law frameworks do not already provide a robust safety net.

Finally, we should be clear that the department would not be supportive of any proposals that may act as a disincentive to the provision of informal care.

Advocacy

The department is aware that some stakeholders express confusion as to the interfaces between the role of IMCAs and other forms of statutory advocacy such as Independent Mental Health Advocacy (IMHA) and the new advocacy provisions introduced under the Care Act.

The practicalities of access to independent advocacy under the Care Act were designed to dovetail as far as possible with IMCA provision, but some tensions can still arise. The department is keen to support greater clarity in this regard. Whether this is best achieved through further guidance or through legislative change is a different question.

We do believe however that any ‘streamlined’ advocacy provision should take care to ensure that the various specialist training and competencies within statutory advocacy are understood and protected. While some advocates may be able to support individuals with a range of care and support needs, in some cases specialist skills may be beneficial, for example in supporting individuals with learning disabilities or those involved in safeguarding enquiries.

The department notes the Law Commission’s proposal that an independent advocate should be instructed for all individuals who are the subject of its proposed protective care scheme (providing the individual consents or subject to a best interests decision). The benefits of advocacy are potentially great for some but the department does have concerns of the imposition of advocacy. The role of support from family and friends may be more appropriate and beneficial for some individuals.

Right to appeal

The right to appeal against any authorised deprivation of liberty is an important safeguard. Ensuring such a scheme is not just technically available but actually accessible is also of key concern.

Tribunals are the responsibility of the Ministry of Justice (MoJ). The department of Health and MoJ do have significant concerns in regard to the Law Commission’s proposals for automatic tribunal referrals. It may be that in many cases, individuals might find such an escalation distressful. Any disagreements and concerns might be more satisfactorily addressed through greater discussions and/or facilitated mediation. This legal approach, while perhaps suitable and effective for some, may not be appropriate for all, and is likely to increase the number of cases going to appeal. Furthermore, DoLS proceedings are complex in nature and judicial continuity is employed where possible. Mirroring this with a tribunal panel may prove problematic.

In addition, as the Law Commission’s impact assessment would demonstrate, automatic tribunal referrals would come at significant cost. It would seem to the Department of Health that such funding could be used for greater service-user outcomes elsewhere in the health and care system.

Other proposals

The department understands that many find the language of the current DoLS system inappropriate and potentially a disincentive to its effective use. We are sympathetic to this and welcome stakeholders’ views on terminology that may better reflect the positive role that DoLS can play.

The Law Commission has proposed amendments to the MCA that would seek to ensure that “decision-makers should begin with the assumption that the person’s past wishes and feelings should be determinative of the best interests decisions”. MoJ is responsible for the legislation in the MCA. The department shares the view of MoJ that the core principles of the MCA are sound and are in line with the principles of the UN Convention on the Rights of Persons with Disabilities (UNCRPD). MoJ, however, will be interested to understand stakeholder’s views in this regard and will consider further whether change is necessary to strengthen the legislation further.

The department recognises the current challenge caused by a death under DoLS being considered by Coroners and Justice Act 2009 to be a death in ‘state detention’. As a result, an inquest is obligatory. The department (and the Chief Coroner) have issued guidance on this matter yet in this specific regard we have heard clear views that such a legislative requirement is inappropriate following Cheshire West and that coroners should be provided with greater flexibility to use their professional judgment.

The department notes with interest the Law Commission’s thoughts on the potential for advance decisions and potentially advance consent to deprivations of liberty. The department is keen to raise awareness among the public of the availability of advance decision making and Lasting Powers of Attorney. We will be keen to understand more about the Law Commission’s proposals in this regard.

MoJ notes the Law Commission’s proposal for a “formal legal process in which a person (known as a ‘supporter’) is appointed to assist with decision-making”. MoJ and the Department of Health are strongly committed to the principle of supported-decision making as legislated for by the Mental Capacity Act. However, we are concerned that this proposal may be an example of an unnecessarily legalistic approach. We also have concerns as to the overlap with other provisions such as advocacy. We also note the potential cost to the public purse of providing a new statutory form of support for people in all aspects of their lives.

The department agrees with the Law Commission that conditions imposed on any authorised deprivation of liberty represent a potentially powerful tool for realising least restrictive and person-centred care. We look forward to stakeholder’s views on how conditions may be best monitored and enforced under any potential new scheme.

Concluding thoughts

The importance of the Law Commission’s work remains clear.

DoLS (and the Law Commission’s work) form part of a wider picture that includes for example, the department’s work on realising better care and support for individuals with learning disabilities (including through the No Voice Unheard, No Right Ignored consultation), and the continuing support for implementation of the Care Act. Understanding this wider picture will be vital for the success of any potential legislative changes proposed in this consultation.

Although reserving its judgment on the proposals contained within the Law Commission’s consultation pending stakeholders’ views and final proposals, the department, together with MoJ, hopes this response provides helpful information on our priorities. We will continue to support the Law Commission in its continuing work to reach final proposals that seek to maximise the benefits for people who may lack capacity and their families.

If such benefits are to be achieved it seems of great importance to us that any revisions to the Law Commission’s proposals are developed in active discussion with the professionals that will be charged with implementing such a scheme, service users and their families. Revised proposals will likely benefit from simulation testing with these groups.