Mental Capacity and Deprivation of Liberty 0 Law Com No 372 (Law Com No 372) Mental Capacity and Deprivation of Liberty Presented to Parliament pursuant to section 3(2) of the Law Commissions Act 1965 Ordered by the House of Commons to be printed on 13 March 2017 HC 1079 i © Crown copyright 2017 This publication is licensed under the terms of the Open Government Licence v3.0 except where otherwise stated. To view this licence, visit nationalarchives.gov.uk/doc/open- government-licence/version/3 or write to the Information Policy Team, The National Archives, Kew, London TW9 4DU, or email: [email protected]. Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned. This publication is available at www.gov.uk/government/publications. Print ISBN 9781474141635 Web ISBN 9781474141642 ID 03031711 03/17 Printed on paper containing 75% recycled fibre content minimum Printed in the UK by the Williams Lea Group on behalf of the Controller of Her Majesty's Stationery Office ii The Law Commission The Law Commission was set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Right Honourable Lord Justice Bean, Chairman Professor Nick Hopkins Stephen Lewis Professor David Ormerod QC Nicholas Paines QC The Chief Executive of the Law Commission is Phil Golding. The Law Commission is located at 1st Floor, Tower, 52 Queen Anne's Gate, London SW1H 9AG. The terms of this report were agreed on 02 March 2017. The text of this report is available on the Law Commission's website at http://www.lawcom.gov.uk. iii Contents Paragraph Page GLOSSARY OF TERMS USED IN THIS REPORT 1 CHAPTER 1: INTRODUCTION 6 The remit of our project 1.8 7 Structure of the project 1.14 8 An overview of our recommendations 1.21 10 Structure of the report 1.38 14 CHAPTER 2: INTERNATIONAL CONVENTIONS, THE HUMAN RIGHTS ACT AND THE CONCEPT OF DEPRIVATION OF LIBERTY 17 The European Convention on Human Rights 2.2 17 UN Convention on the Rights of Persons with Disabilities 2.5 17 Human Rights Act 2.8 18 The concept of deprivation of liberty 2.9 18 The objective element 2.12 19 The subjective element 2.27 24 Imputability to the state 2.31 24 CHAPTER 3: THE MENTAL CAPACITY ACT AND RELEVANT HEALTH AND SOCIAL CARE LEGISLATION 26 Mental Capacity Act 3.1 26 Social care legislation 3.13 28 Health care legislation 3.18 29 Section 117 after-care 3.22 30 CHAPTER 4: THE DEPRIVATION OF LIBERTY SAFEGUARDS AND THE CASE FOR REFORM 31 The Deprivation of Liberty Safeguards 4.2 31 Criticisms of the DoLS 4.13 33 Our consultation paper 4.13 33 Consultation responses 4.16 35 Discussion 4.23 37 iv CHAPTER 5: OUR PROVISIONAL PROPOSALS AND REVISED APPROACH – THE LIBERTY PROTECTION SAFEGUARDS 40 Consultation responses 5.18 42 Discussion 5.27 44 CHAPTER 6: OVERVIEW OF THE LIBERTY PROTECTION SAFEGUARDS 49 CHAPTER 7: THE SCOPE OF THE LIBERTY PROTECTION SAFEGUARDS 52 The arrangements that can be authorised 7.2 52 Consultation responses 7.8 53 Discussion 7.11 54 16 and 17 year olds 7.20 57 Consultation responses 7.25 58 Discussion 7.28 59 CHAPTER 8: THE RESPONSIBLE BODY 63 Consultation responses 8.7 64 Discussion 8.11 65 CHAPTER 9: THE ASSESSMENTS 69 The capacity assessment 9.2 69 Consultation responses 9.5 70 Discussion 9.6 70 The medical assessment 9.11 71 Consultation responses 9.14 72 Discussion 9.15 72 Whether the arrangements are necessary and proportionate 9.20 73 Consultation 9.23 74 Discussion 9.26 75 Further provision about the assessments 9.38 78 Fluctuating capacity 9.38 78 Objective medical expertise 9.59 83 The number and independence of assessors 9.70 85 Equivalent assessments 9.78 87 CHAPTER 10: THE PROCEDURAL CONDITIONS 90 The required consultation 10.2 90 Consultation 10.5 90 Discussion 10.6 91 Conflicting decision of a donee or deputy 10.8 92 Consultation responses 10.10 92 Discussion 10.11 92 v Independent review 10.19 95 Consultation responses 10.21 95 Discussion 10.22 96 Approval by an Approved Mental Capacity Professional 10.27 97 Consultation responses 10.29 98 Discussion 10.31 98 The Approved Mental Capacity Professional role 10.53 104 Authorising arrangements 10.71 110 CHAPTER 11: AUTHORISATIONS 111 Authorisation record 11.2 111 Consultation responses 11.4 111 Discussion 11.5 111 Effect of authorisations 11.11 113 Consultation responses 11.17 114 Discussion 11.18 114 Duration, cessation and renewal 11.22 115 Consultation responses 11.30 117 Discussion 11.32 118 CHAPTER 12: SAFEGUARDS 122 Reviews 12.3 122 Consultation responses 12.9 123 Discussion 12.11 124 Independent advocacy 12.20 126 Consultation responses 12.31 129 Discussion 12.36 130 Rights of legal challenge 12.54 136 Consultation responses 12.60 137 Discussion 12.63 137 Monitoring and reporting 12.82 143 Consultation responses 12.86 144 Discussion 12.91 145 CHAPTER 13: THE MENTAL HEALTH ACT INTERFACE 147 Consultation responses 13.10 149 Discussion 13.17 150 CHAPTER 14: PLACING THE PERSON AT THE HEART OF DECISION- MAKING 156 The place of wishes and feelings in best interests decisions 14.2 156 Consultation responses 14.7 157 Discussion 14.10 158 vi Section 5 acts: additional limitations 14.22 161 Consultation responses 14.24 162 Discussion 14.27 162 Supported decision-making 14.43 167 Consultation responses 14.48 169 Discussion 14.51 169 CHAPTER 15: OTHER MATTERS 171 Advance consent 15.2 171 Consultation responses 15.5 171 Discussion 15.7 172 Interim and emergency deprivation of liberty 15.25 176 Consultation responses 15.28 177 Discussion 15.30 177 Unlawful deprivation of liberty 15.39 180 Consultation responses 15.40 180 Discussion 15.41 181 Amendment of the Coroners and Justice Act 2009 15.51 183 Consultation responses 15.60 185 Discussion 15.63 186 APPENDIX A: DRAFT MENTAL CAPACITY (AMENDMENT) BILL AND EXPLANATORY NOTES 188 APPENDIX B: ECHR AND CRPD COMPATIBILITY 243 APPENDIX C: RECOMMENDATIONS 248 vii Glossary of terms used in this report Acid test The test set out by Lady Hale in the Cheshire West case to determine if a person who lacks the requisite capacity is being objectively deprived of their liberty, namely that the person is not free to leave and is under continuous supervision and control. ADASS Association of Directors of Adult Social Services. Advance decision A decision to refuse specified medical treatment made in advance by a person who has capacity to do so. This decision will then apply at a future time when that person lacks capacity to consent to, or refuse, the specified treatment. This is set out in section 24 of the Mental Capacity Act 2005. Appropriate A family member or other private individual able and willing to person support and represent an adult (instead of an advocate) for certain decisions under the Care Act 2014 and the Social Services and Well- being (Wales) Act 2014. Bournewood gap The failure to provide Article 5 ECHR safeguards to compliant incapacitated persons being admitted “informally” to hospital rather than under the Mental Health Act 1983. This gap was identified by the Strasbourg court in the case of HL v United Kingdom (2005) 40 EHRR 32 (App No 45508/99) and was named after Bournewood Hospital, where HL had been detained. Care Act Care Act 2014. Cared-for person The term used in our draft Bill to describe the person who is or may be subject to arrangements authorised under the Liberty Protection Safeguards. It is a drafting term and not used in this report. Instead the report refers to the “person”. Cheshire West P v Cheshire West and Chester Council and P and Q v Surrey County Council [2014] UKSC 19. Community The legal authority under section 17A of the Mental Health Act 1983 treatment order for the discharge of certain patients from detention in hospital, subject to the possibility of recall to hospital for further medical treatment if necessary. Patients are expected to comply with the conditions specified in the community treatment order. Conditional The discharge from hospital by the Secretary of State for Justice or discharge a mental health tribunal of a restricted patient under the Mental Health Act 1983 subject to conditions. The patient remains subject to recall to hospital by the Secretary of State. 1 Consultation Law Commission, Mental Capacity and Deprivation of Liberty: analysis Consultation Analysis (2017). Consultation Mental Capacity and Deprivation of Liberty (2015) Law Commission paper Consultation Paper No 222. Deputy A person authorised by the Court of Protection to make decisions on behalf of a person who lacks capacity. Deputies can be appointed to make decisions relating to property and financial affairs, and/or personal welfare. Deeming rules These provide that a person’s ordinary residence remains with the local authority in which they were ordinarily resident immediately before moving into accommodation. So if, for example, a person has been placed by local authority A, into a care home in the area of local authority B, their ordinary residence remains with local authority A. DoLS Deprivation of Liberty Safeguards, contained in Schedule A1 to the Mental Capacity Act 2005. DoLS Code of Ministry of Justice, Mental Capacity Act 2005: Deprivation of Liberty Practice Safeguards: Code of Practice to Supplement the Main Mental Capacity Act 2005 Code of Practice (2008). Donee Someone appointed under a lasting power of attorney who has the legal authority to make decisions on behalf of the person (the donor) who made the lasting power of attorney.