This week the government unexpectedly introduced a Bill into parliament to replace the Deprivation of Liberty Safeguards, bringing reform of the DOLS suddenly imminent. According to the press release the government's twin priorities are "to protect the rights of people who do not have the mental capacity to make decisions about their care and to reduce the burden on local authorities". However a close reading of the Bill suggests that saving local authorities "an estimated £200 million or more a year" is at the forefront of the government's thinking. While this is an understandable priority, it is vital that those who care consider carefully and challenge during the legislative process aspects of the Bill which risk inadequate protection for the rights of disabled adults and/or seek to restore the pre-Cheshire West acceptance of curtailments on the human rights of disabled adults on the grounds of their disability.
Positive aspects of the Bill:
- The government appears (at least in the press release) to have adopted the Law Commission's proposed titling of the reformed system as the "Liberty Protection Safeguards". Names matter. This is to be welcomed because it highlights the positive protection of rights, rather than perpetuating the current confusion. However, see the caveats below about whether the system is worthy of the name!
- Responsibility for authorising deprivations of liberty in hospital or CHC funded will shift to the NHS (as proposed by the Law Commission). This is to be welcomed because it should lead to the NHS engaging more seriously and effectively with issues of capacity, necessity and proportionality when arranging care which involves significant restrictions
- The conditions for authorisation include that the arrangements are necessary and proportionate
Key concerns in the Bill include:
- The major concern is that the Bill delegates almost all the responsibility to care home managers rather than the responsible body where (as in the majority of cases) the care is mainly in a care home. This is seriously worrying given that the vast majority of care home managers are employees of private companies (rather than public bodies) which may well have conflicting and competing interests to those of the adults whose DoL is being authorised. Their decisions may be open to challenge on Human Rights grounds (see s.73 Care Act), but this is wholly inadequate protection.
In particular the Bill allows care home managers to:- provide all the information to the responsible body, including capacity and mental health assessments
- decide who they think appears "to have appropriate experience" to determine whether the arrangements are necessary and proportionate
- decide whether they think the person is or isn’t objecting (and therefore whether they should be referred to an Approved Mental Capacity Professional (AMCP) - an extension of the BIA role
- consult with all the interested parties (meaning that family members may not be heard by anyone else)
- review the authorisation
- decide whether the person is entitled to an Independent Mental Capacity Advocate (IMCA)
- choose the “appropriate person” (equivalent of the current Relevant Person's Representative role - i.e. a key protection for the adults rights).
This essentially leaves adults in care homes at serious risk of their being no meaningful independent scrutiny of whether care is being provided in a way which is consistent with their Human Rights.
- The Bill ignores and fails to enact very important aspects of the Law Commission proposals, particularly:
- the proposed amendment to S.4 MCA to require that best interests decisions "must give particular weight to any wishes or feelings ascertained" (which would have brought the MCA a step closer to UNCRPD compliance)
- restricting the s.5 defence for professionals around important decisions to provide additional safeguards for Article 8 rights and ensure that steps are taken to support decision making and properly consult the person and their family
- the proposed regulation making power to enable supported decision making (a vital step towards UNCRPD compliance)
- the proposed right to bring civil proceedings for unlawful deprivation of liberty against private care providers (a vital protection against the potential conflict of interests between private care providers and disabled adults - which would be even more vital if huge power is given to care home managers as the Bill proposes)
- The proposed safeguards apply only from 18 years upwards. This maintains the status quo under DOLS and ignores the Law Commission's recommendation that the safeguards apply from age 16 (in line with the MCA). This is particularly concerning given the recent and highly problematic case law which essentially allows young people between 16 and 18 years of age to be deprived of liberty on the basis of parental consent (with the resulting divergence in applicability between non-disabled and disabled young people given that the latter are more likely to lack Gillick competence as a result of disability).
- Although necessity and proportionality are required as a condition of authorisation the Bill does not specify in relation to what purpose of detention necessity and proportionality are to be considered (dropping the Law Commission's link with risk of harm. Given that (in 2(1)(a) the arrangements are "for the purpose of enabling the care and treatment of a person", this has the potential to allow Deprivation of Liberty to be authorised on other grounds. It is hard not to envisage the risk of slippage here into considerations of organisational and reputational risk and/or cost, convenience and efficiency of care delivery weighing on the assessment of necessity and proportionality.
Other issues of note
- The Bill does not offer a statutory definition of Deprivation of Liberty despite strong support for this from the (probably too recent) Select Committee recommendation in favour of such a definition
- The Bill does not change the status quo on the dividing lines between the Mental Health Act and the MCA. Presumably, in line with the Government's response to the Law Commission proposals
Comment
The Government appears to be largely disregarding most key aspects of the Law Commission proposals (whilst adopting their name for the Safeguards!). It is difficult to see how, in its current form, this Bill could possibly create a system that would fulfil the requirements of Article 5. Despite the distractions of Brexit (not to mention football!) it is vital that the government is challenged on the total inconsistency between its expressed support for the vast majority of the Law Commissions proposals and this flimsy, inadequate and ill thought out Bill.
Reform of DOLS is indeed urgent. The current situation cannot be sustained. But better the current chaos than a hurried reform driven too heavily by the demands of efficiency and cost which leaves disabled adults in care homes with utterly inadequate protection of their human rights.