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The Law Commission report on mental capacity and deprivation of liberty

What's in a name? After 3 years in the pipeline the Law Commission recommends replacing the Deprivation of Liberty Safeguards with the Liberty Protection Safeguards.

Criticising the Deprivation of Liberty Safeguards (DoLS) is like shooting fish in a barrel. While it is crucial that deprivations of liberty are recognised and independently scrutinised the DoLS regime may have become something of a mammoth box-ticking exercise that in the majority of cases leads to little benefit to those being deprived of their liberty. It is also appears to be recognised that after a ten-fold increase in those now recognised to be deprived of their liberty post-Cheshire West the administrative burden of authorising deprivations of liberty has led to widespread non-compliance by public bodies.

So it is welcome that the Law Commissions proposals address the most obvious gaps in DoLS and that the Liberty Protection Safeguards (LPS) will:

  • Apply to those aged 16-17 as well as adults
  • Apply regardless of accommodation setting
  • Remove the need for assessors to conclude that it is in someone's best interests not to harm others, and
  • Be able to authorise deprivations of liberty in transport.

The suggested LPS process appears to be a streamlined version of DoLS. The responsible body (local authority, Clinical Commissioning Group or hospital) will seek to authorise deprivations of liberty by assessing whether the person lacks capacity to consent, is of "unsound mind" and whether the arrangements are necessary and proportionate. They must also appoint an advocate and consult with certain persons. If the responsible body is satisfied that the criteria are met the matter is referred to an internal review, or, if one of two criteria are met, an Approved Mental Capacity Professional (a new role). Those criteria are: (a) if the person is objecting to the arrangements; or (b) if the arrangements are primarily due to a need to protect others.

Mind looks forward to the opportunity to respond fully when a consultation is announced, but would draw out the following at this stage:

  • Independent scrutiny of the arrangements is a must. How will the LPS ensure that the internal review is truly independent? There is course a risk that those within the same organisation will be subject to the internal pressures.
  • Referring to an AMCP only if the person objects risks system where those who are quiet are subject to less oversight. If a particular safeguard is necessary then it is necessary for all.
  • The LPS authorisation could last for up to 3 years without a review. This is a three-fold increase on DoLS and also authorisations by the Court of Protection under the Re X procedure.

In addition to the LPS, the Law Commission recommends amendments to the Mental Capacity Act more generally, one being to give a degree of paramountcy to a person's wishes and feelings when determining best interests. Under the proposals the decision maker must give "particular weight" to the person's wishes, which, though welcome, could perhaps be stronger. Perhaps a rebuttable presumption that wishes and feeling will be followed.

Finally, the report concludes that the fusion of the Mental Capacity Act and Mental Health Act (as per the example of Northern Ireland) "represents the future direction for mental health law reform". We hope that this recommendation is given serious consideration so that the government does not miss an opportunity for fundamental change.

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