Lawyers at Hill Dickinson give their initial views on the Government’s consultation on changes to MCA Code of Practice and implementation of the Liberty Protection Safeguards.
It is early days in the Liberty Protection Safeguards consultation process – open until 7 July 2022 – and there will be lots to read and digest.
Here are some first thoughts:
It is actually happening!
We have been saying for years that we are just waiting for the draft Code of Practice and Regulations to put flesh on the bones, and seeing it arrive dispels any doubts that the government is committed to seeing the reforms through (after, for instance, the part of the Human Rights Act consultation paper that gives Cheshire West as an example of human rights overreach).
The documents published do not confirm a target date.
But, we do know that the consultation will close by 7 July 2022, and that the government expects to take until “the winter” of 2022/23 to consider the responses. It will then publish a final version of the Code of Practice and Regulations, which then needs to be laid before parliament for 40 days. After that the Regulations putting in place the necessary training for AMCPs ‘(ie an independent practitioner, as the BIA is currently under DoLS)’ needs to be brought into force, so they can be in place in good time for the implementation. And there should then be at least six months to plan for implementation.
On any view, that makes October 2023 the earliest plausible date for implementation, and April 2024, perhaps, more likely.
It is rooted in the MCA
The most important thing is to get the Mental Capacity Act right. And it is wholly positive, to emphasise this, that the old MCA Code of Practice (2009) has been updated and that it is rolled in together as a single document dealing with both the MCA and LPS. (The only downside is that it now weighs in at a hefty 518 pages!)
We will focus on the LPS for now, but there are very significant updates to the material dealing with the MCA, reflecting more than a decade of Court of Protection case law, warranting a more detailed review which we will do separately.
The LPS draft Code of Practice does address many of the key issues obviously left open by the legislation (the Mental Capacity (Amendment) Act 2019):
Definition of a DoL
Most fundamentally, in any system to protect Article 5 rights to liberty, what is to be regarded as a deprivation of liberty (DoL) to trigger the process?
Having decided against a statutory definition of DoL, and committed to follow the acid test of the Supreme Court in Cheshire West (someone “under continuous supervision and control and not free to leave”), the government intriguingly said that the Code would offer some examples about its interpretation.
These are in Chapter 12, and they are likely to be controversial, in particular the approach taken to continuous supervision and control.
It is suggested, in both the text and in the case studies, that someone who is left to their own devices for substantial parts of their time is not likely to be under “continuous supervision and control”, though this seems to set the bar rather higher than the case law does. Elsewhere, it refers to the “reasons” for the placement, the “purpose” of the restrictions, or a patient’s happiness in the arrangements in a way with more obvious resonance with the Court of Appeal judgment in Cheshire West than the Supreme Court judgment which overturned it and disapproved of some of that thinking.
Even though the code itself says, at paragraph 12.24, “it is very important to bear in mind that supervision and control should not be inappropriately downplayed as support”, several of the case studies described to not be a DoL look very like cases in which the court is currently routinely finding that there is a DoL.
It is important to remember that the threshold for referral into the LPS system (as it is with DoLS) is not certainty that there is a DoL but a lower bar that the arrangements “may” amount to a DoL (see eg LPS Code of Practice 13.8 and 13.13). This may mitigate any risk that practitioners inappropriately screen people out of the protection of the LPS. But we expect this to be a central issue for debate throughout the consultation (though the consultation question on this asks only if the guidance in Chapter 12 is “clear”, not if it is right).
DoL in life-sustaining medical treatment / vital acts?
We will cover the changes to MCA s4B in more detail in our summary of the MCA reforms, but it is relevant here as it deals with the authorisation of any DoL in life sustaining treatment / vital acts in an emergency, and replaces the Urgent Authorisations of the DoLS system.
The hope was that the Code of Practice might explain clearly where to draw the line between the situation of a DoL authorised by the new s4B, and where it is not a DoL at all (following the Ferreira Court of Appeal judgment, which held that Article 5 was not engaged for Maria Ferreira’s treatment in intensive care, though at face value she was under continuous supervision and control and not free to leave).
Chapter 12 (para 12.77) puts the Ferreira principle in terms arguably broader than the case law to date – “A deprivation of liberty will not occur if the person is treated for a physical illness and the treatment is given under arrangements that are the same as would have been in place for a person who did not have a mental disorder” – and asserts that this should extend to “any setting where medical treatment is being provided” not just in hospitals.
Case studies to explain this (which seem to have been misplaced before para 12.77 rather than following para 12.78) include a scenario of someone (Ms K) placed in a care home and under constant 1:1 supervision who is not deprived of her liberty, according to the Code of Practice, apparently as the reason for her care needs is that she suffered a stroke. Readers may find this hard to reconcile with the case law as it stands.
Chapter 19 deals with use of s4B to authorise a DoL for life sustaining medical treatment or a vital act in an emergency.
“Life sustaining treatment” means: “any medical treatment that in the view of a person providing health care for the person concerned is necessary to sustain life”.
A “vital act" means: “any act which the individual doing it reasonably believes to be necessary to prevent a serious deterioration in the person’s condition” and can include “medical treatment”. (19.9-11)
(Presumably both of these, then, would exclude palliative care?)
An emergency means there is an urgent need for the life sustaining treatment or vital act, and it is not reasonably practicable to use other legal routes, such as an LPS authorisation, MHA, or a court of protection application.
As such, “it is likely that such emergencies will only last for a very short period of time.” (19.18)
We anticipate some providers of medical treatment will be wary of relying on s4B as there is little or no audit trail, governance or template documentation. It would also be very helpful to better understand the relationship between s4B and Ferreira.
Who will be qualified to carry out the 3 assessments?
This is now clear from the Code and Regulations:
The mental capacity assessment (16.27) and necessary and proportionate assessments (16.62) can be done by an identical list:
- a medical practitioner
- a nurse
- an occupational therapist
- a social worker
- a psychologist
- a speech and language therapist
Medical assessments and determinations (16.45) may only be carried out by a registered medical practitioner (including GPs and psychiatrists) or a registered psychologist who meets the conditions of these regulations.
Especially with the timescales (see below), the medical assessment may be a key bottleneck, as we already experience in trying to get doctors to provide evidence to support applications to court for a DoL in the community (though the impact assessment reckons that in 85% of cases there may already be an equivalent assessment of a mental disorder that can be relied on).
Who would carry out the pre-authorisation review if not an AMCP
“The individual carrying out the pre-authorisation review in non AMCP cases does not need to be a health or social care professional. However, they should have an applied understanding of the Mental Capacity Act 2005 and the LPS process” (para 13.44).
This begs the question of the professional accountability and regulation of the person in that role.
“Additionally, the individual that undertakes the pre-authorisation review must not:
- be involved in the day-to-day care of the person
- be involved in providing any treatment to the person
- have a [proscribed] connection … with a care home (in relevant cases involving care homes).” (para 13.45)
The “proscribed connection” is essentially anyone working for, or having a financial interest in, that care home (the Assessments Regulations, Reg 10).
Who will be the authoriser at the Responsible Body?
This is not specified in the Code or the Regulations – it will be up to each Responsible Body.
Perhaps surprisingly, the Code says that it is possible for the same person to carry out the pre-authorisation review and grant the authorisation, if they can “show a degree of separation between the roles. This means they should act independently when carrying out the pre-authorisation review and as the Responsible Body when authorising” (13.63).
It’ll be interesting to see how that might work, how many Responsible Bodies want to use the authorisers to do the pre-authorisation review, and if it survives any challenge.
What level of training is needed for each person involved?
The documents published include a detailed workforce and training strategy and a training framework, on which questions 23 and 24 of the consultation ask for feedback.
Different roles are identified from the broad base of the triangle at level A (all health and social care staff) up to the top at level F (the AMCP role), with an accumulating learning content prescribed for each. The pre-authorisation reviewers and authorisers come in at grade D.
It is striking that even the general awareness raising for level A includes very detailed and substantial material to cover. Training, of course, will be key, and it is recognised that training will continue long after the initial implementation.
What resource will be required, including how many AMCPs?
A workforce strategy document sets out the question and the calculation that is required (how many cases x how much work per case, divided by how much an individual AMCP can do = the FTE workforce needed) but each responsible body will have to work this through for themselves.
How should we define “objection”?
This is crucial because (aside from cases of DoL in independent hospital) access to an AMCP for the pre-authorisation review stage is effectively dependant on whether the person is objecting. This is defined as:
- if it is reasonable to believe that the person does not wish to reside in the place that is proposed, [or]
- if it is reasonable to believe that the person does not wish to receive care or treatment in the place proposed
(Code para 13.49, repeating the legislation in Schedule AA1 – para 24(2))
There is some more guidance in paras 18.30-37 about the level of evidence needed to recognise an objection, and some examples are given.
Will the special scheme for care homes be reinstated?
When introduced to parliament, the LPS scheme included special treatment for arrangements in care homes where, if they wished, the Responsible Body could ask the care home manager to do most of the heavy lifting for doing / arranging the LPS assessments and pre-authorisation review. It was the most controversial bit of the legislation, and was dropped in an outcry, especially about conflicts of interest.
The consultation questions (Q12) explicitly canvass opinion whether the care home manager scheme should be reinstated.
Will there be timescales?
Though it is not in the legislation, the Code says that the assessments process, from triggering the process to a decision being made as to whether to authorise the arrangements should not exceed 21 days, save in “exceptional circumstances” (para 13.26)
And the Responsible Body must ensure that a copy of the authorisation record is given to P and the Appropriate Person / IMCA (or both) within 72 hours or explain why not (para 13.68, reflecting the legislation, Schedule AA1 para 16(2)). It is not clear what the consequences of not meeting those deadlines would be.
There is no time limit on the use of s4B to authorise a DoL “in an emergency”, or while seeking an LPS authorisation, but that only covers a DoL for life sustaining treatment or a vital act.
What about the DoLS backlog as at LPS implementation?
Under the Regulations dealing with the transition (Reg 7), a DoLS referral made but unprocessed as at LPS implementation day “is to be treated on and after the operative day as a request for arrangements to be authorised in relation to the cared for person” under LPS.
We would understand this to mean that no fresh LPS application is required for the unprocessed DoLS referrals as at LPS implementation. But there is no detail about how that will work, and whether the LPS system (with different assessments and processes) will have everything it needs to work with from an old DoLS referral.
There is nothing obvious about the effect of unprocessed court applications for a DoL in the community as at LPS implementation, and whether the court will deal with them or return them on the basis that LPS is now available for those cases.
It is clear from the Transitions Regs that an Urgent DoLS Authorisation already in place cannot be extended beyond LPS implementation day and needs to be followed by an LPS referral.
There is no explicit funding or provision to help clear the unprocessed DoLS before the LPS implementation.
Lastly, for now:
The consultation questions themselves are interesting.
The separate consultation document (60 pages) includes 25 specific questions on which responses are sought.
There are exceptions with more open questions about the IMCA and AMCP processes / resources, but, typically, they are quite narrow, limited to 300 word answers, and in many cases do not invite disagreement with the approach, but just ask is the approach taken is clearly explained in the guidance (eg on the definition of DoL).
Question 20 is a more open question whether anything is missing from the Code. And question 21 (limited to 1,000 words) invites suggestions for more and better case studies, including on any aspect of the LPS guidance, asking “is there any part of the Code where an existing scenario requires updating or a new scenario or best practice example is required to help illustrate the policy”.
Given the amount that people may wish to say about the Code which does not fit neatly into the answers to the other consultation questions, we suspect that the 1,000 words for questions 21 will have to be used very efficiently!
Clearly it is vital that we each engage with and respond to the consultation, to ensure that the end result is as strong as possible.