The Mental Capacity Amendment Bill 2017-19 made its way for a final time through the House of Lords last week. Having been through eleven previous stages of development between the two houses, the Lords agreed with the final amendments suggested in the Commons third reading of the amended Bill.
Whilst the Lords had aimed to create improved transparency regarding a clear definition of what constitutes a deprivation of liberty, the meaning of deprivation of liberty will remain as defined under Article 5 of the European Convention on Human Rights, as it is under Section 64(5) of the Mental Capacity Act.
The Lords agreed with the Commons that the suggested amendments to a deprivation of liberty safeguard, amounted to an exclusionary approach which highlighted what Article 5 constitutes as liberty before then setting out what constitutes a deprivation of liberty.
The final version of deprivation of liberty that was suggested by the Lords has since been rejected by the Commons as it “risked falling out of line with case law and would mean having two different definitions in place, which would bring confusion to a sector that needs clarity.”
However, some have argued that continuing to use such a nuanced and multifaceted definition, like Article 5, will result in further ambiguity, confusion and additional delays to a system already crumbling amidst serious backlogs.
Currently, there are already 125,000 cases claiming that liberty is being deprived, with more than 45,000 waiting for more than a year for their case to be heard.
The Ombudsman for Local Council and Social Care found that between March and June 2018, Staffordshire Council’s delayed and incomplete DoLS applications increased from 2,927 to 3,033. Delays were so considerable that up to June 2018, a record from 2014 was still unprocessed.
In order to assess the high priority cases, the council adapted guidance from the Association of Directors of Adult Social Services (ADASS), dividing cases into high, medium or low priority. They then used this system to create a DIY process prioritising high priority cases.
Whilst the council became adept at dealing with high priority cases within the 21-day maximum recommendation, it was discovered that applications deemed low or medium priority were neglected far beyond the recommended deadlines.
The Ombudsman found that 92% of urgent requests were never assessed or completed beyond recommended deadlines. Similarly, 74% of all standard cases were never reviewed or reviewed late.
Some have claimed that the omission of a clear definition and the use of a code of practice based around Article 5, in the short-term at least, will result in fragmented approaches, inconsistencies and a worse deal for the vulnerable people looking for their rights to be upheld.
Baroness Murphy, cross bench member of the House of Lords, commented:
“We – the Members of this House – have failed to do what we were supposed to do. Our task was to make the deprivation of liberty safeguards -now the “liberty protection safeguards”- more practical, more focused on those at risk, more cost-effective and safer, and we have allowed the Bill to disintegrate into a sprawling, all-encompassing bit of a nightmare. The procedures may be simpler – we have cut out one layer of bureaucracy – but we have allowed these provisions to be extended even further than Cheshire West, even pursuing people in their own homes in a way which I do not think many families will appreciate.
“The one thing everyone, including the JCHR, was hoping we would do was to introduce a realistic definition of a deprivation of liberty. In the end, we in this House just copped out. We could not agree; we got into a mess; the lawyers could not agree either; so we have just said, “No, let us put it all in a code of practice”. As many noble Lords will know, I wrote some of the early codes of practice for the Mental Health Acts, and I know that codes of practice suffer from mission creep – they get more and more stuff in which is quite difficult for people outside in practice who will implement it, and do not get updated very regularly because it is difficult to do so. Indeed, if there is no clause in statute, which most codes are fixed around – and there will not be, of course, as is intended – it will have to be arranged around Article 5. That will leave a situation in which the lawyers will have a field day, and in which we will still be waiting for case law to give us some guidance.
“Meanwhile, the numbers are going up. My latest count was 140,000 – I think the official number a couple of months ago was 125,000. There will be a lot more soon. About a third – it may be even more than that – will be waiting for over a year, and 75% of them are elderly people with dementia, who will probably die before they get their rights looked at. Will it make any difference to them? Generally, it will not make one whit of difference. If we had done our job properly, the numbers would have gone down, and there is a chance that those at greatest risk – for example, people with severe dementia who are kept in locked units, who never see the light of day, and people with severe disabilities in residential care – would have been seen sooner and would have had their care plans addressed in respect of their freedoms.”
The Bill will now pass through Royal Assent and come into law. Whilst many will feel that the new Liberty Protection Safeguards will create a faster, safer and more efficient system that will reduce the current backlog of unheard cases, there is a festering anxiety that a lack of clarity as to how to clearly define deprivation of liberty could result in many being further deprived of their freedom.
Will these changes help people that are lacking capacity? Is there a chance that the new system will be detrimental to some users?
