The Law Commission have today published their report on replacing the Deprivation of Liberty Safeguards (DoLS) in the Mental Capacity Act 2005 (MCA) with a new legal framework called ‘Liberty Protection Safeguards’. According to the Law Commission, “Thousands of vulnerable people with dementia and learning disabilities are being detained in hospitals and care homes without the appropriate checks,” because the current DoLS scheme is unfit for purpose, and they have recommended that it “be replaced as a matter of pressing urgency”.
The Liberty Protection Safeguards scheme, which is supported by a range of detailed recommendations and a draft Bill, seeks to replace DoLS in their entirety, aims to be less bureaucratic and complex than the current statutory regime, and also hopes to provide better protection at lower cost. These laudable aims translate into a new (and still fairly complex) set of proposals that would apply to persons age 16 and over, who lack capacity to consent to the arrangements for care or treatment that would deprive them of their liberty, and who are of ‘unsound mind’ within the meaning of Article 5(1)(e) of the European Convention on Human Rights (ECHR). The Liberty Protection Safeguards would ensure that formal legal processes are put in place before a person with disabilities is deprived of their liberty. The proposals are detailed, clear, and appear to offer a significant improvement on the confusing and poorly functioning DoLS provisions. We shall have to wait and see whether or not the government will accept and implement the proposals, and whether significant amendments to them come through the legislative process.
Those who wish to interrogate the proposals in detail can read the full report on the Law Commission’s website. For the purposes of this blog, I want to draw attention to three points in the Law Commission proposals on Mental Capacity and Deprivation of Liberty that I think are particularly interesting for the Everyday Decisions project.
Prioritising the wishes and feelings of people with disabilities
Alongside their proposals relating to deprivation of liberty, the Law Commission have recommended that the MCA be amended to make clearer that the wishes and feelings of the person involved are more important than other best interest considerations. This is an important step forward in respecting the rights of people with disabilities to make their own decisions about their lives. In my previous research (Harding, 2012; 2015), I argued that the way that best interests decisions were being made by courts seemed to pay too little attention to the wishes and preferences of the person they were being made about. I made those arguments in relation to decisions about statutory wills (Harding, 2015) and about decisions about where to live (Harding, 2012), but others have made similar arguments in other contexts.
The approach to best interests decisions being taken by the Court of Protection does seem to have changed a bit in recent years. This has been particularly noticeable since the Aintree v James case was heard by the Supreme Court, and Lady Hale made clear that “the purpose of the best interests test is to consider matters from the patients’ point of view” [paragraph 45]. Notwithstanding the gradual shifts in the direction of giving primacy to the person’s wishes, these proposed statutory reforms are a welcome measure to ensure that everyone (not just judges and courts) takes account the wishes and feelings of the person whose best interests are being considered. There are some who might argue that a greater level of reform is needed to bring English law fully in line with the UN Convention on the Rights of Persons with Disabilities (CRPD). Indeed, this proposal is quite limited in the face of the outright bar on objective best interests decision-making proposed by the Committee on the Rights of Persons with Disabilities in their General Comment no. 1. It is, however, an important step towards codifying the contemporary interpretive approach, and bringing our law closer to the rights set out in the CRPD.
Restricting the availability of the ‘General Defence’ under s. 5
Secondly, also not concerned with deprivation of liberty, the Law Commission have proposed new safeguards relating to the use of the general defence provided by section 5 of the Mental Capacity Act. This ‘general defence’ has the function of removing civil and criminal liability for people who make best interests decisions under the Act if they have a ‘reasonable belief’ that the person lacks the capacity to make their own decision (see Chapter 6 of the Mental Capacity Act Code of Practice for detail on the protection from liability currently granted by section 5 of the MCA).
In this report (see Recommendation 41), the Law Commission have recommended introducing a record keeping requirement for certain big decisions about people who lack capacity. These would be decisions relating to: moving the person to long term accommodation; restricting the person’s contact with others; the provision of serious medical treatment; the administration of “covert” treatment; and the administration of treatment against the person’s wishes. The proposed record keeping requirements would cover all of the steps of the functional test for capacity under s. 3 of the MCA, as well as additional requirements around reporting the wishes and feelings of the person about whom the decision is being made. The hope is that implementation of this recommendation might facilitate better implementation of the MCA, with the need for record-keeping forcing decision-makers to involve people with disabilities in decisions that affect them.
Finally (for now, at least!) the Law Commission Report does not offer detailed proposals for a supported decision-making scheme in this report. Their previous consultation had proposed such a scheme, but this has not been drawn into the draft Bill. Instead, the draft Bill only includes the power for ministers to implement a supported decision-making scheme through regulations. In one sense, this is a missed opportunity. Supported decision-making is very important under Article 12 of the CRPD. But the Law Commission have suggested that there is, as yet, an insufficient evidence base for putting forward detailed proposals about supported decision-making under the MCA. It is, therefore, only right that any plans for a new legal regime to support decision making should wait until there is a firmer evidence base. It is my hope that the empirical research at the heart of the Everyday Decisions project might contribute to the development of that evidence base, and inform the development of an appropriate scheme to support everyday legally-relevant decision making in the future.
R. Harding (2012) ‘Legal Constructions of Dementia: Discourses of autonomy at the margins of capacity.’ Journal of Social Welfare and Family Law 34(4): 425-442.
R. Harding (2015) ‘Statutory Wills and the Limits of Best Interests Decision-Making.’ Modern Law Review 78(6): 945-970.