legal: liberty safeguards protections
The Liberty Protection Safeguards, due to replace the Deprivation of Liberty Safeguards, appear hurried and driven by cost. Will they actually work more effectively? asks Yo Dunn
The proposed Liberty Protection Safeguards (LPS) are intended to protect the rights of people who do not have the mental capacity to make decisions about their care.
They are going through parliament and are scheduled to replace the Deprivation of Liberty Safeguards (DOLS) later this year.
The DOLS system was hastily introduced in 2007 to safeguard the rights of adults, including those with learning disabilities and/or autism, who had been deemed to lack the mental capacity to consent to circumstances that deprived them of their liberty in hospitals, care homes or elsewhere.
It is widely acknowledged that this overwhelmed system needs reform and the Law Commission spent three years producing detailed proposals for a replacement system.
However, the new bill is very different from the Law Commission’s proposal.
The new system proposes that authorisation to deprive a person of their liberty should be sought during care planning, rather than afterwards. The ‘responsible body’ (a local authority or care commissioning group) will need to be satisfied that:
- The cared-for person has a mental disorder, lacks capacity to consent, and the arrangements are necessary and proportionate to prevent harm
- The cared-for person and any family or friends involved with them have been consulted to try to ascertain their wishes and feelings about the arrangements
- A pre-authorisation review has been carried out by an approved mental capacity professional (AMCP) (likely to be similar to a best interests assessor) to check whether the authorisation conditions have been met, or an “independent person” (who is not required to have had any specialist training) has checked whether it was reasonable for the responsible body to decide whether the conditions have been met.
- Shift in responsibility
- There are some positives. First, the name highlights that the purpose of the system is the positive protection of rights. The system also enables the authorisation of arrangements in any and multiple locations and transport arrangements.
- Responsibility for authorising deprivations of liberty in hospital or NHS-funded care will shift to the NHS. This may encourage NHS bodies to think harder about issues of capacity, necessity and proportionality when arranging care involving restrictions.
- Definition defects
- However, there are serious concerns.
- A proposed statutory definition of ‘deprivation of liberty’, added to the legislation at a late stage, looks rushed and ill thought through.
- The definition is claimed to have the same meaning as article 5 of the European Convention on Human Rights (1998) and an attempt has been made to replicate the definition from the Cheshire West case (P v Cheshire West & Chester Council; P & Q v Surrey County Council, 2014). This case held that an adult is deprived of their liberty in any care situation in which they are:
- Subject to continuous supervision and control and
- Not free to leave (in the sense of moving out of the placement).
- However, the wording appears inconsistent with the case law on article 5. It is expressed negatively – in terms of when a person is not deprived of their liberty – while article 5 is a positive right, which public bodies have a positive obligation to uphold
Second, the proposed definition states that a person is not deprived of liberty if they are not subject to continuous supervision and are free to leave temporarily, even if subject to supervision while doing so. This confusing wording does not appear to reflect the case law, which carefully considers the power imbalance between the cared-for person and those providing care.
Third, the definition attempts to reflect the decision in R (Ferreira) v HM Senior Coroner for Inner South London and others , by stating that a person is not deprived of their liberty if receiving treatment for a physical illness or injury. However, the decision in Ferreira carefully emphasised that the root cause of the loss of liberty in that situation was the person’s extremely serious physical condition. The government’s wording goes far wider and potentially removes human rights from a broad swathe of situations involving adults who lack capacity.
Fears for independent scrutiny
There are also concerns about independent scrutiny. The crucial role of the AMCP will be restricted and, for the most part, they will carry out a pre-authorisation review only where there is reason to believe a person objects to arrangements.
This will leave those who passively acquiesce or are unable to express any objection deprived of their liberty with little or no independent scrutiny.
For them, all that will be required is a paper exercise where an ‘independent person’ – who does not have to see them or their family or have any special training – confirms that the responsible body is reasonable in concluding the authorisation conditions are met.
For adults living in care homes, the responsible body will be able to decide whether to carry out the process of assessment themselves or delegate this to care home managers.
However, with no additional funding so far allocated to carry out these responsibilities, there is a substantial risk that many hard-pressed local authorities will delegate these functions (and their costs) to care home managers. This will mean care home managers will have to:
- Provide all information to the responsible body, including capacity and mental health assessments
- Decide who appears ‘to have appropriate experience’ to determine whether the arrangements are necessary and proportionate
- Decide whether they think a person is or is not objecting, and therefore whether they should be referred to an AMCP
- Consult with all the interested parties, so family and friends may not be heard by anyone else.
- This is a seriously worrying list. Registered managers do not have the knowledge, skills or experience to make the majority of these decisions. Under the proposals, they will be expected to take on all these new responsibilities with a mere half day of training, which is wholly inadequate to ensuring they understand how to make decisions that are legally defensible and respect human rights.
Care home managers could find they have a conflict of interest if they have to make decisions over deprivation of liberty
There is a further concern in that the majority of care home managers are employees of private companies, whose interests may well conflict and compete with those of adults whose deprivation of liberty is being authorised. Even Care England, which represents independent providers of adult social care, has expressed deep concern about this “inherent conflict of interest” (Care England, 2018).
There is as yet no clarity on the funding of these necessary assessments.
“NHS bodies may have to think harder about capacity, necessity and proportionality regarding care with restrictions”
- All this carries a serious risk that there will be no meaningful scrutiny of whether the care of adults in care homes is consistent with their human rights. While decisions will theoretically be open to challenge on human rights grounds for those whose care is publicly funded, few if any will have anyone able to take such action on their behalf.
- Threat to advocacy and support
- Access to advocacy and support appears to be under threat from the proposals in a number of ways:
- Information about an authorisation and a person’s legal rights will only have to be given to them after the authorisation has been granted, leaving them (or their representatives) with the uphill task of undoing what has already been done
- Responsible bodies will determine whether a person requires an independent mental capacity advocate (IMCA). Local authorities that are already relying on a care home manager to do this are unlikely to act on any further information about a person’s need for an IMCA
- There is no general right to an IMCA for people detained under the LPS. The responsible body does not have to appoint an IMCA where there is an ‘appropriate person’ (such as a friend or family member) to represent and support the person, with their consent or in their best interests. It seems unlikely that hard-pressed councils will painstakingly check that genuine informed consent has been given
- Both the cared-for person and an appropriate person will get an IMCA appointed only if they request one. This is a serious weakness and risks repeats of Mark Neary’s experience of not knowing or being able to enforce his son’s rights (Neary, 2014)
- The responsible body will have to ‘take all reasonable steps’ to appoint an IMCA. It is weaker than the requirement in the Care Act that the authority ‘must arrange for’ an advocate ‘to be available’ and is not a watertight statutory duty.
- The bill omits some important aspects of the Law Commission proposals, including a requirement that best interests decisions ‘must give particular weight to any wishes or feelings ascertained’ and a right to bring civil proceedings for unlawful deprivation of liberty against private care providers. These are glaring omissions which are crucial for human rights safeguards and greater compliance with the UN Convention on the Rights of Persons with Disabilities.
- Tweaks but no rethink
- Initially, the proposals were almost unanimously condemned throughout the social care sector.
- The Law Society (2018) said the bill lacked ‘sufficient safeguards’ and requires ‘extensive revision’. Disability Rights UK (2018) saw the bill as a step backwards for rights and the Association of Directors of Adults Social Services (2018) expressed ‘serious concerns’.
- The government has made some small amendments, many of which are welcome. However, it was clear that it would not pause or rethink the bill and is determined to take it into law. Government statements suggest that the primary motivation behind the reforms is to reduce costs.
- Reform of DOLS is, indeed, urgent. The existing situation cannot be sustained. However, a hurried reform, driven too heavily by the demands of efficiency and cost, is not the answer.
- Minor tweaks to the bill are not sufficient. The proposed system will provide utterly inadequate protection for human rights and will not safeguard the liberty of disabled adults. It remains to be seen what happens when the new law is tested against the Human Rights Act in the courts.
Yo Dunn is a social care legal framework and autism trainer and consultant. She provides specialist and bespoke training to organisations in the north of England. consultyo.com
- Association of Directors of Adults Social Services (2018) The Mental Capacity (Amendment) Bill – ADASS Statement Ð 4th September 2018. http://tinyurl.com/y5mmqk2w Care England (2018) Conflict of Interest. Press release. 6 September. www.careengland.org.uk/news/conflict-interest
- Disability Rights UK (2019), 5/9/18, Mental Capacity (Amendment) Bill Will Take Our Rights Backwards. 5 September. http://tinyurl.com/yyhnd6jz
- Human Rights Act 1998. Article 5. European Convention on Human Rights. www.legislation.gov.uk/ukpga/1998/42/schedule/1
- Law Society (2018) Parliamentary Briefing: Mental Capacity (Amendment) Bill 2018. House of Lords Committee Stage. 3ÊSeptember. http://tinyurl.com/y375mxj9
- Neary M (2014) The Court of Protection: Steven Neary’s Story. London: Legal Action Group. http://tinyurl.com/y43fol8m
- P v Cheshire West & Chester Council; P & Q v Surrey County Council  UKSC 19. http://tinyurl.com/yy8xu5ky
- R (Ferreira) v HM Senior Coroner for Inner South London and others  http://tinyurl.com/y28wmuap
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