Heather Lewis, Associate in our Private Wealth Department, and an experienced Court of Protection Practitioner, comments on controversial changes to the rules governing the circumstances in which an individual can lawfully be deprived of their liberty in England and Wales. 

As a general rule, people in England and Wales are free to come and go as they wish. But sometimes it is necessary for vulnerable people who lack capacity to have extra protection and for the state to deprive them of their liberty to keep them (and others) safe.

The Current Regime

In 1997 there was a landmark case - the Bournewood case - which involved a man who suffered from severe autism and challenging behaviour, who lived with carers but lacked capacity to decide where he wanted to live. While at a day centre his behaviour deteriorated and he was informally admitted to hospital. He was denied contact with his carers for three months. The hospital felt that he should continue to be looked after there, but the carers disagreed. The case eventually went to the European Court of Human Rights who determined that the hospital had broken the law because the man had been deprived of his liberty without any safeguards.

As a result of the Bournewood case, the Mental Capacity Act 2005 provided for the introduction of a new, comprehensive set of provisions designed to protect the rights of the individual lacking capacity known as the deprivation of liberties safeguards, commonly known as the DoLs regime. This requires those looking after a person in a care home or hospital to apply to the relevant supervisory body (Local Authority or Health Trust) for a Deprivation of Liberty Safeguards Order (a DOLs Order). The current process involves at least two assessors, including an independent  'Best Interests Assessor' making an assessment and the supervisory board making the final decision.

Mental Capacity Amendment Act 2019

By 2014, it was apparent that the DoLs regime was not fit for purpose. The procedure was cumbersome and costly. Local Authorities were often prioritising more difficult or troublesome cases, thus failing to protect the rights of many other individuals whose right to liberty was being restricted but without complaint from their families. A high profile court case in 2014, known as Cheshire West, determined that it was not just people resident in care homes and hospitals who were subject to the DoLs regime as had previously been thought, and that many more individuals in supported or shared living arrangements and even some people living in their own homes required DOLs authorisation.

The Mental Capacity Amendment Act 2019, which is likely to become law in 2020, will introduce a more streamlined procedure to be called the Liberty Protection Safeguards.  As well as addressing cases that were slipping through the net, the proposed new rules aim to remove some of the bureaucracy; the 'Responsible Body,' usually the relevant Local Authority or hospital, will be able to grant an authorisation themselves. This will be based upon formal confirmation that a person lacks capacity due to a mental disorder and that the restriction of their liberty is reasonably required to prevent harm or a serious deterioration in their condition. Only if there is a dispute will the case be referred to the Court for consideration under the new regime. Unlike the current DoLs regime, the proposed new rules require that the wishes and feelings of the individual should, so far as they can be ascertained, be taken into account. 

Key changes

The most notable differences are:

  1. The new rules will apply to anyone aged 16 or over and will apply in any setting in which a person may be deprived of their liberty
  2. Responsible Local Authorities may delegate responsibility to care home managers for overseeing cases in their settings. This will involve commissioning assessments, arranging consultation and reporting back to the Local Authority on whether the authorisation conditions have been met. Sign off will, however, remain the Authority’s responsibility
  3. The tests for authorisation are similar, but under the proposed new rules, there is no requirement for the arrangements to be in the person’s best interests. The focus is instead on the prevention of harm and deterioration in the person's condition
  4. Authorisations will have an initial limit of 12 months and be renewable, with a fresh authorisation required if the authorisation is allowed to expire . While the first renewal would have a limit of 12 months, subsequent renewals could be for up to three years.

Controversy over the changes

The new legislation has already had a rocky ride through Parliament. Labour attempted to get the Bill thrown out on the grounds that it would not put the interests of service users first, would create conflict of interests and would not reduce the substantial backlog of DoLs cases. Baroness Murphy in the House of Lords, although acknowledging that the new rules do remove some of the bureaucracy, feels that even more individuals will be caught as the new rules “even [pursue] people in their own homes in a way which … not …many families will appreciate”. She commented that Parliament has failed to grasp the nettle and has allowed the Act to “disintegrate into a sprawling, all-encompassing bit of a nightmare”. Although other members of the House of Lords were much more positive about the introduction of the Act, most felt that there were issues which might only be resolved by the passage of time and by further future amendments to the deprivation of liberties process. In particular, they identified the inability to agree on what actually constitutes a deprivation of liberty.

We agree that without a clear definition, there are bound to be disputes on whether a Liberty Protection Safeguard is required for a particular individual.

It remains to be seen whether the new Liberty Protection Safeguards will provide greater protection for more people than the outgoing DoLs system or whether Baroness Murphy’s pessimistic assessment proves accurate. 

Our Vulnerable Client Services team have a number of practitioners with experience of the DoLs regime, so if you or any of your contacts need help with a similar situation, please do not hesitate to get in touch.