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The Law Commission Report

4 April 2017

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for news, legal updates, real

opinions and training:

https://www.linkedin.com/company

/health-and-social-care

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• summer 2014 – July 2015 pre consultation

& drafting of consultation paper

• July – Nov 2015 public consultation on

provisional proposals

• May 2016 interim report

• final report and draft bill published

13.3.7

• reforms to s.4 MCA

• limitations to s.5 defence

• revised s.4b

• the ‘liberty protection safeguards’

– any setting

– from age 16

– authorisation by responsible body – NHS for

hospitals/CHC, LA for other cases

– additional scrutiny by AMCP where P

objecting

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• active (rather than passive)

duty to consider P’s

ascertainable wishes,

feelings, beliefs and values

• duty to give more weight to

this

• s.4b – express authority to

deprive of liberty:

‐ whilst seeking authority

from court

‐ whilst awaiting

authorisation under LPS

‐ in an emergency

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• in each case, you must reasonably believe

that P lacks capacity to consent to the

steps being taken and necessary to

deliver life sustaining treatment or

prevent serious deterioration

• s.4c / 4d – redress for unlawful dol in

private care homes or hospitals

When

• public body moving P to long

term accommodation (unless

for 28 days or less)

• restricting P’s contact with

others

• provision of serious medical

treatment

• administration of treatment

covertly

• administration of treatment

against P’s wishes

The defence only available with

written record

• steps taken to establish

whether P lacks capacity

• steps taken to support P to

make own decision

• why it is believed P lacks

capacity

• why act in P’s best interests

• duty to provide advocate has

been complied with

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• written record must be prepared before

the act unless you reasonably believe

delaying the act would harm P

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• arrangements to enable care and

treatment to 16+ giving rise to a dol

• can be any setting / multiple settings

• can include arrangements for transport

• can include arrangements to ensure

return of P to placement

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• does not include arrangements for

assessing/treating mental disorder

(exception for LD outside MHA).

Therefore compliant patients lacking

capacity in hospital for treatment of their

mental disorder would need to be

detained under MHA under the proposed

regime

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• if P in hospital, the hospital manager

• if CHC, the CCG

• otherwise, the LA (on basis of ordinary

residence)

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• capacity assessment (can include

fluctuating capacity)

• medical assessment (of unsound mind?)

• assessment re whether LPS necessary and

proportionate weighing up likelihood of

harm to P/others

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• minimum of 2 assessors who must be

independent of each other

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• mental health arrangements excluded

• LPS cannot conflict with decision of

LPA/CAD on accommodation

• cannot conflict with MHA decisions (e.g.

CTO/s.17 leave)

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• thereafter reviewed by independent

reviewer

• person not involved in day to day care &

treatment of P

• if independent reviewer satisfied

conditions for LPS met RB can authorise

• however some cases must be referred to

an AMCP for determination

– where P objects

– where dol necessary and proportionate

re: risk to others only

– discretion to refer others

– AMCP provided by LA (similar to AMHPs)

– cannot be involved in day to day care and

treatment

• required to determine afresh whether the

conditions are met

• if satisfied, must approve the

arrangements and notify the approval in

writing to the ‘responsible body’

• if not – notify in writing, providing reasons

and describing steps to obtain approval

• should review information and where

practical meet P

• fresh consultation discretionary

Authorisation

• authorisation record which can

travel with P so long as the

specific arrangements are

authorised

• once authorisation in place,

protection of liability to acts

done in pursuance to

authorisation

Duration

• can be renewed, 12 months, 12

months, 3 years

• suspension for short term

mental health admission

• reviews

• advocacy throughout

• recommends right to tribunal

or CoP with improved

accessibility & incorporation of

medical expertise

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• when can we expect a government

response?

• potential for pre-legislative scrutiny

• in the meantime, carry on with the

system we have...

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Report and draft bill available:

http:/www.lawcom.gov.uk/project/mental-

capacity-and-deprivation-of-liberty/

We are delighted to be hosting the 2017 conference in

Birmingham on 27 April, 9:30am – 3:30pm.

• £99 + VAT per person

• IET Birmingham, Austin Court, B1 2NP

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Please get in touch if you have any questions

or wish to discuss the topics we’ve covered

further…

mark.barnett@brownejacobson.com | 01392 45 8768