The ‘Adjusted’ Liberty Protection Safeguards: Some Concerns

The Mental Capacity (Amendment) Bill, which has its second reading in the House of Lords on Monday 16 July will reform the Deprivation of Liberty Safeguards (DOLS) in the Mental Capacity Act 2005. The bill as it currently stands would introduce an ‘adjusted’ version of the Liberty Protection Safeguards proposed by the Law Commission. This Bill would place new responsibilities on registered care home managers to secure the authorisation of care and treatment regimes that deprive residents of their liberty. I think that this is a fairly troublesome idea, and this blog tries to articulate the reasons why I am concerned.

What are DOLS and why do they need to be reformed?

Under Article 5 of the European Convention on Human Rights (ECHR) (part of UK law as a result of the Human Rights Act 1998), everyone has the right to liberty and security of the person. People of ‘unsound mind’ can be deprived of their liberty under the ECHR, but any detention needs to be ‘lawful’ under the Convention. A person is deprived of their liberty if they are “under continuous supervision and control, and … not free to leave” (HL v United Kingdom 40 EHRR 761 at [91]). The DOLS framework was introduced to provide a framework for authorisation of deprivations of liberty for those people who require care and/or treatment in settings where they are deprived of their liberty, but lack the necessary mental capacity (under the Mental Capacity Act 2005) to consent.

The current DOLS were introduced in 2007 as a response to the European Court of Human Rights Decision in HL v United Kingdom, (sometimes known as the ‘Bournewood’ case) that a man with severe autism, HL, had been deprived of his liberty in an in-patient setting. Unfortunately, the DOLS framework has been repeatedly criticised  for its “appearance of bewildering complexity” (Lady Hale, Cheshire West) and is generally considered not fit for purpose.  Numbers of applications have increased exponentially in recent years, following the Cheshire West decision, leading to long delays and large numbers of people being deprived of their liberty unlawfully. Fully implementing the current DOLS scheme would cost vast sums of money, and is not considered an appropriate solution to the current systemic problems.

The Mental Capacity (Amendment) Bill

The Mental Capacity (Amendment) Bill is intended to be the solution to the problems with DOLS. Since reading the bill, which was published rather sooner than anyone anticipated, I have become increasingly concerned about the parts of the proposed scheme that place extra responsibilities on registered care home managers. The Bill is (loosely) based on Law Commission recommendations and a draft bill published in 2017 that recommended the introduction of a new ‘Liberty Protection Safeguards’ (LPS) scheme. But in their report the Law Commission did not propose placing any additional responsibilities on ‘care home managers’. Instead, the responsibility for securing the required medical and capacity assessments, consultations and other formalities would always have fallen on the ‘responsible body’ – usually either a hospital manager or a local authority – in other words, a state/public sector actor.

Under the bill, instead of these public functions which protect the human rights of disabled people being secured by an independent public servant, for anyone whose liberty will be deprived in a care home the person responsible for organising all of the relevant assessments, consultations, reviews and renewals will be the registered care home manager. I think that there are (at least) five reasons why this is a bad idea:

1. Costs

The major rationale for the ‘adjusted’ LPS system proposed in the Bill is to reduce the costs associated with the system that protects disabled people against unlawful deprivations of their liberty. The impact assessment  calculates that the adjusted LPS would save over £200 million per annum on the current spend and cost just £135.65 million each year (this is in contrast to fully operationalising the current DoLS framework, which they calculate would cost over £2 billion each year).

The costs of placing this responsibility onto care homes for have been assumed to be zero in the impact assessment because they will no longer have to complete existing DoLS application forms, which are described as “of comparable length and complexity”. Just 0.5 days per registered care home manager have been costed for ‘familiarisation’ with the new system. This seems to me to be an under-estimation, considering the limited awareness of knowledge and understanding about disability human rights that we found in the Everyday Decisions research.

It also seems to me that care home managers are being asked to take on significantly more responsibilities under the adjusted LPS than their current standard and urgent authorisation form filling role under the DOLS. Under the proposed new system, the care home manager will also be responsible for commissioning and collating evidence of: capacity assessment, medical assessment (that the person is of ‘unsound mind’), consulting with a variety of people, notifying the responsible body that an IMCA or appropriate person should be appointed, and writing the required accompanying statement and draft authorisation record. Most of this work, as I understand it, is currently undertaken by (independent) Best Interests Assessors rather than by care home managers.

These new and additional responsibilities will require both training and time. As a result, I think the proposed adjusted LPS would place a significant financial burden on the care sector, at a time when it is already under real financial pressure. This appears to be a simple privatisation move, pushing the costs of ensuring procedural justice for disabled people onto the already privatised care sector.

2. Paperwork

In the Everyday Decisions research, we found that senior care professionals already struggle to balance the paperwork they are required to complete with the day to day pressures of running care services. In the words of  a registered care manager who took part in the project:

“More and more time is spent, because everything now it’s paperwork and paperwork, and you got to prove you’re doing stuff, rather than the actual doing of it. It doesn’t seem to matter so much anymore, as long as you’ve got a piece of paper to say this is what you’ve done. A lot of the agencies think that’s far better than actually doing the job … whether we actually do it or not doesn’t seem to make much difference, it’s that piece of paper. So more and more of my time is sat in front of that computer and I hate it. I hate it with a vengeance. … I like to spend time with the [residents]. There’s no point me trying to write care plans and all this if I actually don’t know what [their] needs are and how they need things done and what they need to do, so otherwise it is just a paper exercise.” Julia, Care Home Manager.

The adjusted LPS proposals will place even more paperwork and form filling responsibilities onto care home managers, who also have wide ranging responsibilities for the day to day running of their services, staffing, budgetary responsibility, meeting CQC and other statutory regulations, and ensuring that their service provides high quality care. There is a danger that this new approach to the LPS will simply add to these perceived paperwork burdens, rather than operating to safeguard people from unlawful deprivations of their liberty.

3. Least Restrictive Alternatives

Devolving responsibility to care home managers to complete all of the paperwork for LPS, might also work against the need to ensure that all best interests decisions made are mindful of less restrictive alternatives. The challenge here is that a care home manager will generally only have sight of the systems and processes within their own service.

In contrast, under the present DOLS system, Best Interests Assessors have more of a ‘helicopter view’ of different approaches to care across a wide range of providers and arrangements. As a result, a care home manager’s approach to deprivation of liberty may not always represent the least restrictive approach available for the person in need of care. At a technical legal level, this could conflict with the principle of the Mental Capacity Act that before acts are done or decisions are made in a person’s best interests consideration needs to be given to whether it can be “as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action”. At a more personal level, it could mean that people are deprived of their liberty when they may not always need to be.

Whilst this issue could, potentially, be caught at the proposed authorisation stage by the responsible body, it may not be. In particular, less restrictive alternatives that do not involve the care provider preparing the paperwork might not be always be considered. As a result, they may not be referred to in relevant justifications for why the authorisation conditions are met, in the formal statement which forms the basis for the paper review by the responsible body.

4. Potential Conflicts of Interests?

I am also concerned about the potential for conflicts of interests being generated by the adjusted LPS approach that devolves the primary responsibility to private sector care providers. Under the current model, Best Interests Assessors are unlikely to have any particular vested interests in any particular outcome for individuals. In contrast, as care homes are usually private businesses (whether run on a for profit or not-for-profit basis), it is in the financial interests of the care home manager to provide their service to a potential service user. The delegation of the protection of disabled people’s Article 5 rights to liberty and security to care homes in the manner envisaged by the ‘adjusted’ LPS model in the Bill seems to me to raise some potential conflicts of interest between individuals’ rights and care homes interests in gaining (and keeping) service users.

5. Human rights issues

I have tried, so far, in this (already lengthy) post to avoid getting into technical legal detail, but my final concern does require a little bit of engagement with the detail of human rights law. Despite ministerial statements to the contrary on the face of the bill, I am not fully convinced that adjusted LPS scheme is compliant with the Convention rights.

Private care providers still inhabit an odd hybrid public/private status in relation to the Human Rights Act 1998, despite repeated judicial and legislative attempts at clarifying this.[1] The current situation is that where care is arranged by a local authority (whether or not that local authority funds the care), or provided by or funded by the NHS, the care provider is, under the Care Act 2014, carrying out a public function for the purposes of the Human Rights Act 1998. Any care that is arranged privately and self-funded, which applies most often in the context of dementia care, would still not be covered by the Human Rights Act 1998. The consequence of this is differential treatment in human rights law for service users depending on who has arranged or funded the care. This different treatment might mean that service users have different avenues of recompense if the service provider infringes their human rights.

I think that there are also particular challenges raised by the requirements of lawfulness under the Convention in relation to Article 5(1)(e). These are set out in the European Court of Human Rights guidance on Article 5 so I will not go into these in depth. The area here that is of most concern to me is the issue of renewals, which do not appear to require any formal reassessments of the person’s capacity, medical condition or best interests. Reassessments are, of course, one of the main cost issues associated with the current DOLS scheme, and it is understandable that there is a regulatory desire that unnecessary repetition should minimised. But given the potential in this bill for renewal of the authorisation of a deprivation of liberty for up to 3 years, I think that there is a strong case for renewed capacity and medical assessments, independent of the care provider. If for no other reason, then this may be required in order to satisfy the requirements around timing set out in the ECtHR case law where psychiatric reports that are 18 months old have been considered not to be sufficiently recent to justify a deprivation of liberty.[2]

Conclusions

As I hope the above makes clear, I think that there are several challenging issues with the adjusted Liberty Protection Safeguards in the Mental Capacity (Amendment) Bill as it currently stands. If this Bill is to succeed in replacing the current DOLS scheme, then I consider that the delegation of responsibility to care home managers needs to be rethought.

I also think that there are missed opportunities in this Bill to move our Mental Capacity Act closer into compliance and alignment with the letter and spirit of the right to enjoy legal capacity under the UN Convention on the Rights of Persons with Disabilities.

The parliamentary process does, of course, offer multiple opportunities for discussing and addressing these issues. I very much hope that these opportunities will be seized by interested parliamentarians to ensure that this proposed ‘solution’ to the current DOLS problems does not simply generate new set of deprivation of liberty problems.

[1] I outline the history of this issue in detail in chapter 6 of my 2017 book, Duties to Care: Dementia, Relationality and Law.

[2] Kadusic v Switerland, application no. 43977/13 at [44]; Herz v. Allemagne, application no 44672/98, at [50]