Replacing the DoLS regime: Another step closer?

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Replacing the DoLS regime: Another step closer?

Published 11 July 2018

The push to replace the existing deprivation of liberty safeguards (DoLS) regime has recently taken a further step forward with draft legislation incorporating the proposed changes - the Mental Capacity (Amendment) Bill - having just started on its journey through Parliament.

What replacement system is the bill proposing?

At a glance:

  • Local Authorities will no longer do all the authorising of deprivations of liberty - hospitals and CCGs will have to do so as well;
  • The new system will only apply to those aged 18 and over;
  • Best Interests Assessors will go, and an 'Approved Mental Capacity Professional' will only need to be involved if the cared-for person objects to the arrangements;
  • Care homes/care home managers will have a far greater role to play in the process.

We look at what is now being proposed and what happens next.

What does the proposed new system look like?

The bill focuses just on the process for authorising deprivations of liberty for those lacking capacity to consent to their care arrangements, and does not extend to some of the wider MCA revisions envisaged in the Law Commission's recommendations for reform (e.g. recommendations around 'advance consent', 'supported decision-making', proceedings against private care providers for unlawful deprivations of liberty and bolstering MCA provisions on taking wishes and feelings into account have all fallen by the wayside in this bill).

However, the idea of a more manageable system which extends to all care settings and does not rely exclusively on Local Authorities to authorise deprivations of liberty remains at the centre of the system proposed in the bill.

Although the bill does not specifically give the new system a name, it is referred to in the explanatory notes as the 'Liberty Protection Safeguards', suggesting that the name as put forward by the Law Commission will be taken up.

What situations will it apply to?

Authorisations under the new system would cover 'arrangements for enabling the care and treatment of persons who lack capacity' where those arrangements involve depriving the cared-for person of their liberty (including transporting the person to and from the place they are being cared for), with the idea being that the authorisation will be able to move with the cared-for person across different sites/places of care.

The 3 conditions which would have to be met under the bill in order to be able to authorise care arrangements amounting to a deprivation of liberty are:

  • the cared-for person lacks capacity to consent to the arrangements;
  • they are of 'unsound mind';
  • the arrangements are 'necessary and proportionate'.

However, the new system would not apply to 'mental health arrangements' (designed to replicate the existing position - i.e. if someone is objecting to care/treatment for a mental disorder, the Mental Health Act takes precedence and the authorisation process cannot be used) or where an authorisation would conflict with MHA requirements (e.g. CTO conditions).

Whilst 'urgent' authorisations would no longer exist under the new provisions, the bill proposes to amend the MCA to allow for people to be lawfully deprived of their liberty if necessary for the purposes of giving life-sustaining treatment or doing any 'vital act' (i.e. to prevent a serious deterioration in the person's condition), whilst steps are being taken to obtain an authorisation or whilst a decision on deprivation of liberty is being sought from the court or in an emergency.

It is worth noting that the bill does not include any statutory definition of 'deprivation of liberty', although the Parliamentary Joint Committee on Human Rights recently recommended introducing such a definition to bring more clarity for frontline professionals.

Settings?

The proposed new system would not be limited just to care homes and hospitals as currently, but would extend to any care setting (including the person's own home or supported living arrangements).

In practice, this means there would no longer be a need to apply to the Court of Protection for welfare orders for deprivations of liberty outside care home/hospital settings - e.g. dispensing with the need for COPDOL11 applications for those being cared for in their own homes or in supported living accommodation.

Age range?

Although the Law Commission recommended extending the authorisation system to 16 and 17 year olds, this idea has not been carried forward in the bill.

This means it will only be possible to authorise deprivations of liberty for those aged 18 and over, with the legal position for under 18s continuing to be subject to the growing body of caselaw in this area.

Who will authorise deprivations of liberty?

The current system of all deprivations of liberty having to be authorised by a Local Authority will go, to be replaced by a system where the load is spread between hospitals, CCGs and Local Authorities depending on the nature of the particular care arrangement.

Under the bill, the 'responsible body' for authorising deprivations of liberty would be as follows:

  • If the arrangements are carried out mainly in a hospital, the 'hospital manager' (i.e. NHS Trust or registered manager in the independent sector);
  • If the arrangements are carried out mainly through provision of NHS Continuing Healthcare, the CCG;
  • In any other case (including self-funders), the Local Authority.

Before authorising care arrangements amounting to a deprivation of liberty, however, there are a number of steps which must be taken, including obtaining assessments around capacity and 'unsound mind', consulting with relevant people and carrying out a 'pre-authorisation review', which will need to involve an 'Approved Mental Capacity Professional' where there is reason to believe that the cared-for person does not wish to reside in a particular place/receive care and treatment there.

Another important point to flag is that - for care home cases - the bill envisages much of the 'leg work' around arranging assessments, consulting and reviewing falling to care home registered managers (see further below).

What will the process involve?

The steps which will need to be taken before a deprivation of liberty can be authorised include:

  • Capacity and 'unsound mind' assessments - the responsible body's decision on whether the conditions for authorisation are met must be based on assessments of capacity and 'unsound mind'.   These assessments can have been carried out for a previous authorisation or any other purpose, provided it appears to the responsible body (or, in the case of care home arrangements, to the care home manager) that it is reasonable to rely on that assessment having regard to matters such as how long ago the assessment was done and what it was done for. The bill is currently silent on whether the capacity and 'unsound' mind assessments have to be done by different people. In care home cases, it will up to the care home manager to arrange these assessments and provide them to the 'responsible body' (i.e. the Local Authority or CCG in CHC cases).
  • 'Necessary and proportionate' decision - the determination that the arrangements are 'necessary and proportionate' may be made by anyone who appears to the responsible body (or care home manager in care home arrangements) to have appropriate experience and knowledge to make the determination.   (It seems to us that this provision is somewhat vague and that further guidance will be needed on how this should work in practice).
  • Consultation - in order to try and ascertain the cared-for person's wishes/feelings regarding the care arrangements, the responsible body (or care home manager in care home arrangements) must, where practicable and appropriate, consult with those listed in the legislation, including anyone engaged in caring for the person or interested in their welfare.
  • Pre-authorisation review - in order to check that the authorisation conditions are met, there must in all cases be a 'pre-authorisation review'.   This must be done by someone not involved in the day-to-day care of the person or in providing any treatment to them (no further detail is provided in the bill about who such a person might be). Importantly, if there is reason to believe that the cared-for person does not wish to reside in the place provided for in the arrangements or to receive care and treatment there, the pre-authorisation review must be carried out by an 'Approved Mental Capacity Professional', who must meet with the cared-for person (if appropriate/practicable) and consult with others as above.
  • Authorisation record - the responsible body (or care home manager for care home arrangements) must create a draft authorisation record specifying all the authorised arrangements/durations. This will then become the authorisation record when the responsible body authorises the arrangements.

As reflected above, the obligations on registered managers in care home cases are quite onerous, including having to provide the 'responsible body' with a statement confirming the care home manager's view that the arrangements give rise to a deprivation of liberty and that the conditions for authorisation are met, plus attaching evidence of consultation, copies of assessments and a draft authorisation record.

Duration, renewals and reviews…

A first authorisation could be for up to a maximum of 12 months, renewable for an initial period of 12 months, and up to 3 years at subsequent renewals.

The responsible body would be required to specify a programme of regular reviews of the authorised arrangements (with those reviews to be done by the care home manager for care home arrangements). Reviews would also have to be done in specified circumstances, including if a reasonable request is made by someone with an interest in the arrangements.   If it appears on review that the cared-for person may now object to the arrangements, the authorisation must be referred to an Approved Mental Capacity Professional.

As now, the Court of Protection would continue to be able to decide any question relating to whether the authorisation system applies to particular care arrangements/whether the authorisation conditions are met, what period the authorisation has effect for and what it relates to.

What next?

Nothing is changing imminently.

However, the legislation needed to bring about change has now started on its journey through Parliament, with the next step being a general debate on the bill in the House of Lords scheduled for 16 July. Once the bill has proceeded through various stages of consideration in the House of Lords, it will then need to go through a similar process in the House of Commons before it can become law.

There is currently no timeframe for how long this process might take, although some commentators have suggested we might be looking at the new system coming into effect around the end of 2019/beginning of 2020. Certainly, the government seems keen to push forward on this given its acceptance that the current DoLS system needs changing as a matter of 'pressing urgency'.

How we can help

Our national team of Mental Capacity Act and Court of Protection specialists can provide responsive, practical advice to commissioners and providers across the health and social care sector on all aspects of the law in this area, including:

  • Guidance on whether a DoLS application is necessary and the evidence required to support any application made;
  • Section 21A challenges to DoLS standard authorisations;
  • Assistance in identifying whether an application can be made under the Re X procedure or whether an application to the Court of Protection via the 'usual route' will be required;
  • Specialist training for staff involved in the assessment of capacity and implementation of the DoLs framework.

Authors

Gill Weatherill

Gill Weatherill

Newcastle

+44 (0)191 404 4045

Jessica Major

Jessica Major

Bristol

+44 (0)117 918 2675

Paul McGough

Paul McGough

Leeds

+44 (0)113 251 4763