On 16 May 2019, the Mental Capacity (Amendment) Act 2019 (“the Act”) was given Royal Assent and it is hoped that it will come into force in Spring 2020. The Act amends the Mental Capacity Act 2005 in relation to procedures in which a person may be deprived of their liberty where the person lacks capacity to consent. This article seeks to provide a summary of the main points for providers to be aware of under the Act. Providers will have further clarification as to how the Act will work in practice once the Regulations and Code of Practice have been drafted.
The Liberty Protection Safeguards
The long awaited Act will replace the current Deprivation of Liberty Safeguards (“DoLS”) with the new Liberty Protection Safeguards (“LPS”) set out in Schedule AA1 of the Act. Deprivation of liberty still has the same meaning as it has under Article 5(1) of the ECHR and it has not been defined in the new legislation.
The LPS introduces a process for authorising arrangements which deprive a person of their liberty in relation to a cared-for person who is:
- Aged 16 or above
- Lacks capacity to consent to care arrangements
- Has a mental disorder.
The LPS relates to a person residing in a particular place, receiving care or treatment at a particular place and the ‘means and manner of transport’ from or between particular places.
Under the previous DoLS scheme, the ‘supervisory body’ was the authority which could authorise arrangements depriving a person of their liberty in care homes and hospitals. Under the new Schedule AA1, a ‘responsible body’ will be able to authorise arrangements which deprive a person of their liberty in any setting. Responsible bodies include the following:
- The hospital manager – NHS Hospitals
- The responsible Local Authority – Independent hospitals in England
- The Local Health Board for the area – Independent hospitals in Wales
- A Clinical Commissioning Group or Local Health Board – where a person is eligible for continuing healthcare
Section 42 of the Mental Capacity Act 2005 has been amended to require that the LPS Code of Practice must include guidance about types of arrangements that would deprive someone of their liberty. This guidance must be reviewed within three years of the legislation coming into force and thereafter every five years.
How will authorisations be made under the Act?
For a responsible body to authorise arrangements to deprive someone of their liberty it must be satisfied that the following conditions are met:
- The person lacks capacity to consent to the arrangements
- The person has a mental disorder within the meaning of section 1(2) of the Mental Health Act 1983
- The arrangements are necessary to prevent harm to the person and proportionate in relation to the likelihood and seriousness of harm to the person.
The responsible body must carry out consultation with various individuals before arrangements can be authorised. These individuals can be the cared-for person, anyone named by the person to be consulted or anyone engaged in caring for the person or interested in the person’s welfare (amongst others). The purpose of this is to try to ascertain the cared-for person’s wishes or feelings in relation to the arrangements. The responsible body must take reasonable steps to appoint an IMCA to represent and support the cared-for person throughout the authorisation process.
Pre-authorisation reviews must be carried out by a person who is not involved in the day-to-day care or providing any treatment to the cared-for person. This is to determine whether it is reasonable for the responsible body to conclude that the three authorisation conditions are met. A pre-authorisation review can be completed by an Approved Mental Capacity Professional (AMCP). Other professionals will also be able to carry out the review and these will be listed in the statutory guidance when it is published.
What will happen in care homes?
Under the DoLS system, supervisory bodies are responsible for the assessment and authorisation of cared-for persons who may be deprived of their liberty. Under the LPS scheme, if the cared-for person is aged 18 or over and the care arrangements are carried out wholly or partly in a care home, the responsible body can decide whether it should carry out the assessment process, or whether it should be led by the care home manager.
If the responsibility is passed to a care home manager, they are required to provide a written statement to the responsible body confirming that:
- The cared-for person is aged 18 or over.
- The arrangements give rise to a deprivation of the cared-for person’s liberty.
- The arrangements are not mental health arrangements or requirements.
- The “authorisation conditions” are met.
- The required consultation has been carried out.
- They are satisfied that the arrangements provide for the cared-for person to reside in a particular place or receive care or treatment at a particular place and it is reasonable to believe that the cared-for person does not wish to reside at or receive care or treatment at that place (or they are not satisfied that a decision can be made as to whether either applies).
The written statement must include reasons as to why the above points are satisfied and should be accompanied by the assessments determining that the authorisation conditions are met, evidence of the consultation carried out and a draft authorisation record.
The responsible body then decides whether to authorise arrangements based on the information provided and the pre-authorisations review information. The responsible body can also decide if the care home manager should undertake the review and/or renewal processes.
How long do authorisations last for?
An authorisation is effective from the time at which the responsible body gives the authorisation, unless the responsible body specifies a later time and up to 28 days later.
An authorisation can last for an initial period of 12 months or until the date specified by the responsible body when the authorisation was granted. An authorisation record must include provision for regular reviews. Under LPS a responsible body is able to renew an authorisation if the conditions continue to be met and it is unlikely that there will be any significant change in the person’s condition during the renewal period. If renewed, the authorisation can last for a second period of up to 12 months and subsequently periods of up to three years if a person’s condition and circumstances are likely to be long-term and stable.
Authorisations can cease at any time if the responsible body determines that they should be brought to an end or if the responsible body believes or ought reasonably to suspect that any of the authorisation conditions are not met. Authorised arrangements also cease to have effect if the person is subject to a guardianship order or a community treatment order under the Mental Health Act 1983.
Powers of the Court in relation to LPS
Under Section 21ZA, the Court of Protection (“CoP”) may determine any question relating to LPS arrangements, whether the authorisation conditions are met, the length of the authorisation and what the authorisation relates to. Applications can be made by the cared-for person and others without the permission of the court.
The CoP has the power to make an order varying or terminating the authorisation or directing the responsible body (or care home manager if the task has been delegated to them) to vary the authorisation.
Patients detained under the Mental Health Act 1983
Patients detained under the Mental Health Act 1983 or those who object to receiving mental health treatment in hospital cannot normally be subject to LPS authorisation. However, they can be subject to authorisation if the purpose of the mental health arrangements which deprive a person of their liberty, is to provide physical intervention or treatment and the person lacks capacity to consent.
We do not yet know what date the Act will come into force but the Regulations and Code of Practice, once drafted, will hopefully provide clear guidance for providers in relation to how the LPS will work in practice. Providers should await the publication of the draft Code of Practice which the Government has committed to publishing for public consultation.
If you have any queries in the meantime regarding any issues raised in this article, Ridouts would be happy to help.