Morris Hill 12 October 2018

A missed opportunity?

A missed opportunity? image

On July 17th the Mental Health (Amendment) Bill had its second reading in the House of Lords. The draft legislation, based on a Law Commission report, is designed to streamline the authorisation process for depriving someone of their liberty when they lack the capacity to consent to the arrangements for their care. It aims to make the process less taxing on families, carers and local authorities.

Yet, in the absence of a review of the appropriate judicial body for determining challenges to authorisations depriving a person of their liberty, the Bill retains the current practice of such challenges being brought in the Court of Protection.

Given the complex and sensitive nature of individual cases, this is often a costly and protracted process for all parties concerned, in particular local authorities, which defend the challenges to their authorisations. A review of the process needs to be expedited and changes included in the Bill as soon as possible – especially if its headline benefits are to be delivered.

When the legislation was tabled by the Government it was welcomed with relief. The Deprivation of Liberty Safeguards (DoLS) which it proposes to replace have been criticised as not being fit for purpose since coming into force. Currently, councils are responsible for assessing whether a person lacks capacity to consent to care arrangements that deprive them of their liberty and whether those arrangements are in a person’s best interests.

This operational strain has created significant difficulties for councils, not to mention a considerable financial burden and a huge backlog of cases awaiting consideration. When the Bill was debated in the House of Lords, one Liberal Democrat peer claimed that 120,000 people were currently waiting for authorisation under the DoLS. Those individuals are, potentially, being unlawfully deprived of their liberty.

The Bill will address this by dividing responsibility more evenly and reducing the requirement for repeat assessments. Instead of relying on the supervision and final decision of councils, Clinical Commissioning Groups (or Health Boards in Wales), hospital managers will undertake the assessments themselves – leaving councils as the responsible body tasked with managing the process in all other cases, such as for those in care homes, supported living schemes and people’s own homes.

How this will work in practice is still being ironed out. In the House of Lords, concerns were raised over the proposed system’s ability to act in the best interests of individuals, the circumstances that constitute a deprivation of liberty and what credentials the person charged with authorising the deprivation must have. Putting these valid points to one side, however, from a local authority’s perspective, whatever the new system eventually looks like, it should still see operational and financial pressure reduced.

To build on this progress and honour the broader aims of the Bill, legislators should ensure the legal challenges that often accompany deprivation of liberty authorisation should be efficient, less formal and proportionate.

The Law Commission suggested there should be a review of the appropriate judicial body for determining challenges to authorisations of deprivation of liberty under the proposed Liberty Protection Safeguards, and that it should form part of the wider ‘Transforming our justice system’ review. The hope is that such a review would establish a dedicated tribunal to handle these specialist challenges. It could be staffed by experts from a range of backgrounds and be free from the formality and onerous processes of a courtroom environment.

This could potentially speed up decision-making, make the option of disputing the deprivation of liberty more accessible to individuals affected by it and ensure the process is less demanding on authorising bodies.

Deprivation of liberty is a sensitive but essential aspect of the care we give society’s most vulnerable people. The legal framework that supports it should allow the process to be conducted efficiently, effectively and without undue strain on councils, the individuals at the heart of the process and their families, friends and carers.

Morris Hill is an associate in national law firm Weightmans’ public bodies practice

This feature first appeared in Local Government News magazine, click here to sign up for your own free copy.

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