Mental Capacity Act (Amendment) Bill

A quick look at the draft Liberty Protection Safeguards

The Liberty Protection Safeguards had their first reading in the House of Lords on 3rd July 2018 and are due to enter the committee stage in September. Here is a faster-than-whistle-stop tour of what they do and just a few of the concerns we will be raising during their process through parliament. In brief, the LPS cut a number of important safeguards that now need to be bolstered, without reverting back to something as unwieldy as Deprivation of Liberty Safeguards (DoLS). The Bill also misses an opportunity to make wider amendments recommended by the Law Commission which would improve and promote autonomy supported decision-making more widely.

When the LPS apply

The LPS apply to arrangements for 'enabling the care and treatment' of a person that gives rise to a deprivation of liberty. LPS does not define a deprivation of liberty so the Cheshire West definition remains. They apply where P (the person subject to the arrangements) is over 18, is of 'unsound mind' and lacks the capacity to consent to arrangements. LPS apply in all accommodation settings, whereas DoLS applied only to care homes and hospitals and can also authorise transport between places.

The authorisation process

The authorisation process differs if P is in a care home. Other than in a care home the 'responsible body' can authorise the arrangements if:

1. P lacks capacity, is of 'unsound mind' and the arrangements are 'necessary and proportionate'

The first two matters require an assessment; the third requires someone with 'appropriate experience and knowledge'.

2. The relevant parties have been consulted with

These include anyone P has named to be consulted, anyone engaged caring for P or interested in their welfare, any attorney or deputy or any Independent Mental Capacity Advocate (IMCA) or 'appointed person'.

This requirement does not apply where it is not practicable or appropriate to consult a particular person.

The purpose of the consultation is 'to try to ascertain [P's] wishes or feelings in relation to the arrangements' however P does not themselves have to be consulted.

3. An IMCA has been appointed where required

An IMCA must be appointed where:

a. P has capacity and asks for one; or

b. they lack capacity and the responsible body thinks it's in their best interests to have one; and

c. there is no 'appropriate person' suitable and willing to represent them. This will usually be a family member. They will not be 'appropriate' where P has capacity and does not want them to act or they lack capacity and it's not in their best interests.

An IMCA must also be appointed to support the appropriate person where they request one.

4. A pre-authorisation review has been carried out

This is completed by a person who is not involved in caring for or providing treatment to P. Where P objects to the arrangements (which can be behavioural) an Approved Mental Capacity Professional (AMCP) must conduct the review.

The reviewer must consider the information provided to the responsible body and decide whether the conditions in paragraph 1 are met. If the reviewer is an AMCP they must also meet with P and anyone who needs to be consulted under paragraph 2. If the reviewer does not consider the conditions are met the authorisation cannot be granted.

5. An authorisation record has been completed

This records the dates of the authorisation, the arrangements for review and any other specified matters.

Duration, review and renewal

An authorisation can be granted for up to 28 days in the future. It can last for up to 12 months at first and then for three years. It will end if not renewed or the responsible body believes that the criteria are no longer met.

The authorisation must be reviewed on reasonable request by P or anyone with an interest, if P becomes subject to a mental health arrangements or requirements, or on a significant change in circumstances. The reviewer must refer the case to an AMCP where P objects and the initial review was not done by an AMCP.

Overlap with the MHA

LPS cannot be used where:

1. P is detained in hospital under the MHA, subject to a Community Treatment Order (CTO) or on s.17 leave
2. The arrangements include P being accommodated in hospital for mental health treatment, P objects to those arrangements and P could be made subject to sections 2 or 3 of the MHA

LPS in care homes

Where the arrangements are for accommodation in a care home the manager must provide the responsible body a statement setting out that the criteria are met, including the capacity and unsound mind assessments and evidence of their consultation. The care home must also comply with the IMCA or appropriate person requirements, conduct the internal review and indicate whether an AMCP is required.

Our chief concerns

Our current shortlist of concerns is at about fifteen, which we are happy to share. Here is a very brief summary:

1. Government should follow the Law Commission's proposals for wider reform of the MCA that increase autonomy and supported decision-making. These include more regard being paid to an individual's views in best interest decisions, more structure in decisions made under the MCA generally and the opportunity for a framework on supported decision-making.
2. The Bill does not provide for sufficient involvement of the P or regard sufficient regard to be paid to their views: the best interests requirement, which required P's involvement, has been removed; P does not need to be consulted directly; the 'independent reviewer' does not need to consult P; P does not need to be given copies of any authorisation; and it is not clear how P's views, if they are obtained, fit into the criteria for authorisation.
3. The Bill does not provide sufficient support for P to challenge their detention: support from advocates or other parties are patchy and there is no duty on advocates, appointed persons or the responsible body to bring a challenge on P's behalf in any circumstances.
4. The Bill does not provide a sufficiently independent review in all cases and provides a better standard of review only for those who object to the arrangements, disadvantaging the most severely disabled.
5. The Bill places too much responsibility on care homes.
6. 'Unsound mind' as a criterion for detention is outdated and stigmatising. While it may appear in Article 5 this doesn't mean that we can't come up with something better.

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