COMMENT: MENTAL CAPACITY (AMENDMENT) ACT 2019 (UK).

• Date: 01 January 2019
• Author: Series, Lucy

I INTRODUCTION

The Mental Capacity (Amendment) Act 2019 amends the Mental Capacity Act 2005 of England and Wales, and replaces the heavily criticised deprivation of liberty safeguards (DoLS) with a new administrative framework for authorising deprivation of liberty, the Liberty Protection Safeguards (LPS).

II BACKGROUND

The DoLS were inserted into the MCA to provide authorisation and safeguards for deprivation of liberty in care homes and hospitals following the 'Bournewood case'. In HL v UK (1) the European Court of Human Rights had ruled that the informal admission of an autistic man to Bournewood Hospital was a deprivation of liberty in the meaning of art 5 of the European Convention on Human Rights (ECHR), notwithstanding that he had not actually attempted to leave the hospital. The DoLS administrative scheme was intended to satisfy the procedural requirements of art 5 ECHR. They included a process for formal assessment of mental capacity and whether it is in the person's best interests to be deprived of their liberty, and mechanisms for review and appeal.

The DoLS have been heavily criticised since their inception; in 2014 a House of Lords Select Committee on the MCA described them as 'poorly drafted, overly complex' and 'far from being used to protect individuals and their rights, they are sometimes used to oppress individuals'. (2) The Committee called upon the government to 'start again'. In the same year, the Supreme Court adopted a definitive 'acid test' on the meaning of 'deprivation of liberty' for adults who are considered to lack the capacity to consent to their care arrangements in P v Cheshire West and Chester Council and another; P and Q v Surrey County Council. (3) If a person is subject to continuous supervision and control and is not free to leave, then they are deprived of their liberty and require safeguards in accordance with art 5 ECHR.

Within a year of the Cheshire West decision the number of DoLS applications increased by a factor of more than ten. (4) Today it is estimated that as many as 300,000 people may be deprived of their liberty and require safeguards. The volume of applications is far beyond the capacity of the DoLS scheme; over 126,000 applications remain unprocessed by the end of 2018. (5) Furthermore, many of the places where the Cheshire West 'acid test' applies are not care homes or hospitals, including supported living accommodation and even private family homes. The government asked the Law Commission to review the scheme and make recommendations for reform.

III THE LAW COMMISSION'S PROPOSALS

The Law Commission embarked upon a wide ranging consultation and made recommendations for a new scheme--the Liberty Protection Safeguards (LPS)--to replace the DoLS. (6) The new scheme aimed to be more 'proportionate', to reduce unnecessary 'bureaucracy', reduce duplication of assessments, and focus scarce professional resources where they were most needed.

Authorisations could be granted for any setting(s) where the arrangements to provide care and treatment give rise to a deprivation of liberty; a much more flexible approach than the DoLS. This extends the machinery of ar 5 from settings that may more readily be associated with detention--such as hospitals and care homes--to include settings like supported living, or even care provided to a person living in their own home (including potentially by their family).

Under the new scheme 'responsible bodies' would be able to authorise deprivation of liberty provided there was medical evidence of 'unsoundness of mind', the person lacked the mental capacity to consent to the 'arrangements' to deliver care or treatment, and the arrangements were 'necessary and proportionate' in relation to the risk to the person or to others. Responsible bodies would be the hospitals, health bodies or local authorities that would in many cases be responsible for arranging or even delivering the person's...