A quick guide on the final version
This is our third article on the Mental Capacity Act Amendment Bill/Act and the Liberty Protection Safeguards (“LPS”), and likely not our last. The Bill received royal assent on 16 May and so here is a very brief summary of where the Bill ended up. It is nowhere near comprehensive. For those keen on the detail I would recommend checking out the fantastic collection of resources that Alex Ruck Keene has put together on his website (and kindly allowed us to share).
It is worth noting that we do not yet have a commencement date, regulations or a Code of Practice. We have the bare bones but there a lot of questions still to answer, so it may not be possible or desirable to get too heavily invested yet. We are working with a number of organisations and individuals on the Code and will provide updates.
Where is the definition of a deprivation of liberty?
Those following the progress of the Bill will be aware that an amendment was introduced defining what a deprivation of liberty is. This came out and there is now no definition within the Act. Our view was that the suggested definition didn’t actually provide any useful clarification, particularly on what is meant by ‘continuous supervision and control’. The definition will be explained in the Code of Practice.
When do they apply?
While the Deprivation of Liberty Safeguards (“DOLS”) authorises particular placements, LPS will authorise ‘arrangements’. This could cover, for example, restrictions necessary at a care home, a day centre, regular medical treatment and transport between all three.
LPS will apply to those aged 16 and over, who lack capacity to consent to the arrangements and who have a mental disorder. This has changed since the original bill, which applied to adults lacking capacity due to an “unsound mind”.
There’s a good four pages of Act on this, but in general terms the responsible body will be the hospital manager for NHS hospital placements, the relevant Clinical Commissioning Group where the person is in receipt of Continuing Healthcare, or the local authority (including for independent hospital placements).
The responsible body can authorise arrangement when:
- It is satisfied that the individual has a mental disorder and lacks capacity to consent to the arrangements. This will require a professional assessment and a ‘determination’. Details on who and how will follow in regulations and the Code.
- It is satisfied that the arrangements are necessary and proportionate. Again, detail to follow, but this must specifically include consideration of the individual’s wishes and feelings.
- It, or in some cases the care home manager, has consulted a list of people, including the individual and anyone they choose to be consulted.
- An Independent Mental Capacity Advocate has been appointed if required. This is loosely where
- the individual has capacity and wants one, or
- they lack capacity (unless it would not be in their best interests to have one, which seems unlikely in most cases), and
- there is no one suitable to represent them.
The individuals ‘appropriate person’ is also entitled to an advocate in similar circumstances.
- A pre-authorisation review has been carried out by someone not involved in the individual’s care or treatment, or by an Approved Mental Capacity Professional (a new role) where it is reasonable to believe the individual objects to the placement or treatment, or they are in an independent hospital.
- A draft authorisation record has been prepared specifying the arrangements, their duration and the program for review.
Renewal and review
Authorisations must be renewed after the first 12 months and then every 3 years. The authorisation must have a program of regular reviews, which include a reasonable request or following a significant change of circumstances. The authorisation can be varied on review.
LPS v Mental Health Act
The interaction between the two Acts, i.e. when someone must be detained under one rather than the other, is, to me, the most complex part, and I look forward to an easily accessible explanation in the Code.
People detained under the MHA cannot be subject to the LPS, nor can anyone who is in hospital for mental health treatment who objects to being there. LPS may be used where a detained patient gets treatment for a physical condition.