• DoLS will surely be replaced? 29 March 2017 | View comments

  • 28th March 2017 | By David Jolley

    The Law Commission published its report ‘Mental Capacity and Deprivation of Liberty’ Law Comm No 372 March 13th 2017. 

    The full report, which includes a draft Bill runs to over 272 pages, the summary to 30 pages and the impact assessment to 45 pages. It is a massive and truly impressive piece of work.

    Brought in to respond to a European Court ruling, the Deprivation of Liberty Standards were added to the Mental Capacity Act and Mental Health Act in 2007 and implemented 2009. Their aim is to bring English Law to comply with the requirements of Article 5 of the European Human Rights Act. This relates to the right to liberty. The Bournewood case HL v UK had demonstrated that in some instances people were being deprived of liberty for mental health treatment under common law rather than the Mental Health Act, denying them procedural rights.

    When introduced it was anticipated that DoLS would apply to few patients in hospital and care homes each year. By 2012 to 2013 applications were 11,887 in the year, 2013 to 2014 there were 13,715 but a ruling by the Supreme Court, ‘Cheshire West’, in 2014 has led to an explosion of application to 137,540 2014 to 2015 and 195,840 2015 to 2016.

    Local Authorities have been overwhelmed. Each assessment is said to cost of the order of £1,000. Huge amounts of money have been diverted from services and the system has fallen badly behind the required time table to respond to applications. Matters were compounded when the Chief Coroner ruled that all deaths occurring to individuals registered under DoLS must be dealt with as deaths in State Detention and processed by Inquest of the Coroner. This introduced additional cost to authorities and very real distress to families.

    The Law Commission has been working since 2014 to identify a better way of complying with Article 5 ECHR, but also Article 8 which relates to the right to private and family life. The Commission has consulted widely and offered earlier drafts of their considerations and an interim statement. The anomaly of the Chief Coroner’s ruling was addressed in the House of Lords by Baroness Finlay November 2016. A form of words was agreed which will change the Policing and Crime Bill to mean that registration under DoLS is not deemed to equate with state detention. This will come into force from April this year.

    The present report suggests DoLS be replaced by Liberty Protection Standards (LPS] and that these be supported by a Code of Practice.

    LPS will be flexible across all settings including domestic residence as well as care home or hospital. Once applied to an individual they will not require a new application when the individual moves between settings.

    While DoLS have usually been considered and applied ‘after the event’ i.e. when someone is already in care and being deprived of liberty. The ambition is that LPS will be considered and agreed, or not agreed, before arrangements are put in place. ‘Arrangements’ is a key word and concept for LPS is envisaged as relating to a range of measures designed to help and protect an individual and those caring for them. This is not just a matter of placement.

    Most assessments can be made by internal review by services already involved with the care of individuals, though the assessment will be independent of teams directly involved with their care. Only in sensitive cases will there be resort to an external opinion, the new profession, ‘Approved Mental Capacity Professional’. AMCPs will be involved when an individual does not agree with an arrangement or when there is hazard to others.

    Applications will be made to hospital managers or to Local Authorities. The latter applies to arrangements made by private medical organisations and self-funding families.

    A table of conditions, positive and negative, defines who should be considered for LPS. Safeguards include regular reviews and the appointment of an approved person or advocate to support every individual being considered.

    There is a flow chart which clarifies the process but I remain unclear what happens when an individual who has been considered is deemed not to fulfil criteria at that point in time. I presume repeated applications can be made if concerns recur or persist.

    Decision makers are required to take into account ‘a person’s ascertained wishes and feelings’ when best interest decisions are made.

    Authorisation can be active immediately or from up to 28 days from the assessment.

    Young people aged 16 and 17 will be included, rather than relying on parental consent.

    The issue of fluctuating capacity is addressed. Essentially if individuals send a lot of time lacking capacity, the safer option is to agree a LPS.

    A basic inclusion criterion is that an individual ‘is of unsound mind’. This is a ECHR term, not directly equivalent to most modern definitions but avoiding conflict over definitions of ‘mental disorder’ and ruling that some individuals may lack capacity without being deemed mentally ill.

    It is required that arrangements are justified as ‘necessary, proportionate and in the best interest’ of the individual. Consultations should include the individual, carers, donee, appropriate person and advocate. For individual age 16 or 17, parents or the responsible Local Authority will be consulted too.

    Arrangements can be contested if in conflict with the views of a done, a Court Deputy or a valid Advance Decision. This will lead to an Independent Review or referral to an AMCP.

    The Responsible Body will collect and maintain an Authorisation Record. LPS itself does not give authority to deprive an individual of freedom. A new Section 4AA of the Mental Capacity Act will protect staff against civil or criminal liability.

    Once authorised a LPS will last for 12months and can be renewed without formal reauthorisation every 12 months to 3 years. It is interrupted if an individual becomes subject the Mental Health Act and can be revoked ahead of its renewal date if capacity returns.

    As I read it, there will be an Approved Person identified for every individual where this is possible. In absence of such an advocate will be appointed. Even where there is an Approved Person, individuals or the Approved Person has the right to request an advocate.

    Appeals will be dealt with by a Tribunal which is yet to be created and is left to the discretion of Government. Many changes are happening and anticipated for courts and tribunals so that suggesting details at present would not be useful.

    Monitoring of the new system will be essential and will probably fall to CQC and its Welsh equivalent. This too is left open for Government to decide.

    The need for a sober and effective interface between LPS and the Mental Health Act is identified but the details of how this will work remain for further consideration.

    Placing the individual at the heart of decision making and supported decision-making schemes will characterise LPS. Advance Consent will be available so that people can say, whilst still possessing capacity, what arrangements they will be content with should certain situations develop. Let us hope that this will be widely advertised and widely taken up. It allows individuals to feel ownership of their futures and will obviate the complexities and expense of LPS.

    While it is an act of faith that LPS will function via well thought out and discussed decisions ahead of any implementation of arrangements, there is the option for interim or emergency deprivation of liberty for ‘life sustaining treatment or care to prevent deterioration.’

    There is a reminder that unlawful derivation of liberty can lead to civil or criminal actions in law.

    Costs and benefits
    The cost of all this is estimated at between £19,269,000,000 and £28,234,000,000 each year. 

    Financial benefits are estimated to be between £69,445,000,000 and £127,906,000,000. These calculated benefits rely on savings from possible law suits, and QALY gains in health. There must be considerable doubt of their validity. 

    This suggests that the massive expenditure is a bargain because it is far outweighed by the benefits. The expenditure is real and takes away money that might be spent on care or treatment. The benefits seem to me to be theoretical, intangible, and unreal.

    Using similar assumptions full implementations of DoLS is calculated to cost £170,002,000,000 to £261,772,000,000 i.e. ten times as much as LPS. Benefits are calculated at £15,115,000,000 to £26,414,000,000 each year i.e. less than a quarter of the gains from LPS.

    I cannot avoid ‘Wow!’ This is a magnificent piece of work, beautifully crafted, a tour to force. The estimated costs are enormous and may well turn out to be underestimates, but they are less than those associated with the discredited and clearly unaffordable DoLS.

    The estimates of financial benefit are, I suggest, close to science fiction. The nonmonetary benefits of rights and compliance with European law may be real and desirable.

    I continue to ask whether any other European country has adopted or is intending to adopt systems anything like as comprehensive, extensive and expensive as this.

    All this has followed from the Bournewood case, which I would argue rested on inadequate understanding and ill-informed interpretation of the law of that time by the practitioners who were involved. If that were seen to be true, and said clearly at the time, that would have been the end of it.

    The recent escalation of costs and the drawing in of vast numbers to the prospect of our last months being subject to additional legislation follows the major ruling of Cheshire West. The Law Commission was required to accept this as the position in law in this country. I have suggested previously that, though it may have some logic in law, this ruling makes no sense within the realm of common sense. It places us in the unethical position of committing massive resource to a paper exercise which has little tangible benefit and will mean that services to people in need will be even more severely rationed.

    The option of using an Advance Decision to declare acceptance of appropriate care and treatment may prove to be a saving ‘get out’ clause. This places responsibility on every individual to take action in the interests of the national good to reduce the waste of scarce resources. The harm of the Chief Coroner’s legally correct advice has been neutralised by a few well-chosen words. I still hope that a way can be found to do the same for Cheshire West. 

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