I began to read through the Law Commission’s proposals and soon got confused.  Were these the actual proposals that were going forward? The document stated the original proposals but didn’t clarify how they had developed into recommendations, so I didn’t know what they were actually putting forward in the end.

The proposals themselves appeared to be a dog’s dinner.  My particular interest was in the implications for acute hospitals. There had been a proposal to have a separate scheme where two clinicians authorised detention in a general hospital for 28 days.  However, this was not fleshed out or even mentioned in the proposals going forward.

As far as I can see acute hospitals will now be covered by the Emergency provision in the proposed Clause 2, but there is very little flesh on the bones.  What if they are in hospital for a stroke? Soon after the event, not an emergency.  The Ferreira judgement was trying to point out the difference between people in a hospital for medical treatment and, my extrapolation, between those in a secure residential setting. They are different.

I was also unclear about other issues – the proposed Independent Reviewer role – it sounds to me like a BIA. The AMCP role which they say is modelled on an AMHP sounds very very different from an AMHP and more like a case manager – a social worker in fact!

I am still confused about whether there will be a division between the Supportive and the Restrictive categories (the acute hospitals and palliative scheme was supposed to be different, and there is a very real difference between people in hospital temporarily for treatment who are then discharged and people in a restrictive residential setting).

Who would fall under the Restrictive Category – probably not care homes or shared living – they’d be under Supportive?  Maybe in a psychiatric unit? In that case why wouldn’t they be under the MHA? Especially since the proposals muddied the water futher by suggesting this LPS could be used for people who paused a harm to others.

Anway, here’s what I wrote:   Please enlighten my confusion

*****

On 13 March 2017 the Law Commission published its final report on the Liberty Protection Safeguards (LPS) designed to replace the Deprivation of Liberty Safeguards (DOLS), which is increasingly seen as not fit for purpose.  They propose DOLS should be replaced by LPS straight away.  The report suggests that acute hospitals will be covered by a separate scheme from the LPS, so far un-named.

LPS contains two sub-schemes. The  proposed hospital and palliative scheme, which would apply to the NCUHT is only sketched out.

In the hospital scheme, two clinicians (not just doctors, and presumably from the hospital staff, not independent) assess detention for care and treatment is in the patient’s best interests and apply for 28 day detention, which is authorised by “the hospital managers”.   This might be the CCG. It is not clear.

Patients would be able to apply to a tribunal to contest this detention.

Detention for more than 28 days would need to be authorised by an Approved Mental Capacity Professional (AMCP) presumably approved by the Local Authority, and possibly employed by the LA who would then seem to function as a care overseer and case manager.

Caveats: The proposed scheme is extremely sketchy and will not be Law for some time, or in this form at all.

In the meantime, NCUHT should operate DOLS, with regard to the Ferreira judgement of January 2017 (see below), until advised otherwise by the Department of Health.

Background:

The Deprivation of Liberty Safeguards (DOLS) became law in 2007 after the European Court of Human Rights ruled that the UK Government was in breach of Article 5 of the European Convention on Human Rights (ECHR) “The Right to Liberty”. This ruling was in regard to the case of a man with Learning Disabilities who had been kept in a psychiatric hospital with no legal process of appeal.  It was seen that this was a widespread problem  in the UK and thousands of patients who lacked capacity were being simply “kept” in hospitals and nursing homes with no scrutiny of their detention.

DOLS was seen as providing scrutiny and compliance with Article 5 for patients lacking capacity who were resident in hospitals and nursing homes.  However, from the outset it was criticised as unwieldy and not fit for purpose.

One problem was that a deprivation of liberty was not defined.  Then the landmark Cheshire West case in March 2014 produced the so-called “Acid Test” whereby anyone:

  • Who lacks the capacity to consent to their stay in hospital/care home;
  • Who is also, under continuous supervision and control;
  • Who is not free to leave the hospital/care home of their own volition;
  • And, where the detention is imputable to the state.

Was considered to be deprived of their liberty. By this test, many patients in acute hospitals are deprived of their liberty.

DOLS, like Do Not Attempt Cardio-Pulmonary Resuscitation notices, a formalised, specific Best Interests decision within the ambit of the Mental Capacity Act 2005 – an Act that is seen as “a good piece of Law”. In DOLS, therefore, the decision is always a best interests decision by professional about a patient’s residence.

The acid test was welcomed for providing clarity, but it also, probably deliberately, cast the net of DOLS  much wider than before, and by the acid test many patients in acute hospitals were now apparently deprived of their liberty, including patients in intensive care or very physically unwell patients who lacked capacity because of their illness.

This led to a massive increase in the number of DOLS applications to the extent that the Local Authorities could not service the requests in a timely fashion because of lack of resources. This led to people who were apparently detained by the State in hospital in practical terms receiving no scrutiny, and therefore DOLS was failing to address the issues it had been set up to address.

Another consequence was for the Coroners Service. Anyone dying in state detention (and DOLS was seen as state detention) required an inquest by jury – and there were again massive resource implications for the Coroners Service.  Many patients who were unwell in acute hospitals met the acid test and were safeguarded under DOLS. Because of the severity of their illness, a good proportion of these unwell patients under DOLS died.  The Ferreira Case in 2017 addressed the issue of whether patients in an acute hospital were actually compulsorily detained by the State and the judgement seemed to say that where the patient’s wishes were not overridden, and where their stay in hospital was due to their illness rather than the wishes of the State, then they were not detained.  This judgement itself was not uncontroversial as it can be argued that a patient with learning disabilities or with schizophrenia who needs to be detained in a psychiatric, is only detained because of their illness.

Against a background of DOLS failing to do what it was set up to do, namely to safeguard the Article 5 Rights of patients who lacked capacity, the Government tasked the Law Commission to review DOLS.  It was recognised that deprivation of liberty almost always engaged issues covered under Article 8 of the ECHR “The Right to a Private and Family Life.”

The Law Commission report on DOLS was published on 13 March 2017. Their conclusion was that DOLS needs to be replaced “right away”.

Law Commission Proposals

The Law Commission proposes a scheme called the Liberty Protection Safeguards (LPS)

It will apply to everyone 16 years old or over who lacks capacity to consent to their placement.

Relevant points for NCUHT:

An LPS will be transferrable, so it appears that a resident of a care home who is already under LPS, will simply transfer that authorisation to the hospital when they come in for treatment.

They suggest that the responsible body for LPS in an NHS setting will be the “hospital managers that are commissioning the person’s care”. This probably means the hospital trust but may mean the CCG. The use of the word commissioning suggests the role might fall to the CCG. The care commissioners would decide whether a deprivation of liberty was justified and that decision would be independently confirmed by an Approved Mental Capacity Professional (AMCPs) – a new role modelled on that of the Approved Mental Health Professional (AMHP) who applies for detentions under the Mental Health Act (MHA) 1983 (amended 2007).  It says that an AMCP would only be needed where the person objects to the detention, or where the detention is for the protection of others. This is not exactly parallel with the AMHP who can apply for a detention even if they person does not object.  The inclusion of detention for the protection of others threatens to muddy the waters considerably with the MHA 1983.

Presumably AMCPs would be approved and employed by the Local Authority in the same way AMHPs are approved and employed.

The Hospital and Palliative Scheme seems to be outwith the LPS.

Hospital and Palliative Care category. Patients in acute hospitals who lacked capacity to consent to treatment would require “two clinicians” (not just doctors) to assess a patient agree it was in the patient’s best interests to be in hospital, and then “hospital managers” would authorise “care and treatment” (and presumably detention, as care and treatment is already authorised under the MCA).  Extension after 28 days would be done by an AMCP. Patients could apply to a (new) tribunal against their detention.

The LPS itself is to be split into two categories:

Supportive Care category, where the person lacks capacity and would apply to a care home, supported living, or shared lives accommodation”.

Restrictive Care and Treatment category, where a person is subject to restrictions such as those in the Acid Test, but not limited to these. It would be broader than the Acid Test.  The danger is that this definition will suffer from the same lack of clarity that beset the definition of “a deprivation of liberty” under DOLS and which led to such complexity and confusion.   Applications under this category would be made by the new AMCP role (see above).  However, unlike an AMHP, it is proposed that the AMCP remains involved in the case on an ongoing basis as some kind of case manager, or case management supervisor. This might lead to conflict or duplication with Social Workers already assigned to the case. It is not clear where a patient under Restrictive Care would be detained.   Presumably psychiatric patients would already be detained under the MHA and patients in care homes would come under Supportive Care.

Unfortunately, at Chapter 6, after saying that the Hospital and Palliative Care scheme would be separate from LPS, the overview of LPS says:

The responsible body may authorise the arrangements. If the person is receiving treatment

in hospital or in receipt of NHS continuing health care, the responsible body will be the

relevant NHS body (for example, the hospital trust, clinical commissioning group or local

health board). Otherwise the responsible body will be the local authority (including where

the person is a “self-funder”).

This is only non-contradictory if hospitals here means solely psychiatric hospitals.

At 9.74 (2), the proposal says:

in a hospital setting, a doctor could carry out the medical assessment and the

assessment of whether the arrangements are necessary and proportionate (and

an occupational therapist could provide the capacity assessment);

Again suggestive that it applies within acute hospitals, which have previously been ruled out. Of course doctors and OTs work in psychiatric hospitals and this is the setting that might be meant here. It could be better clarified.

In the flow chart on page 51, it is very unclear what the difference between the Advocate and the Appropriate person (both named) is.   The review is to be carried out by an “independent reviewer”, before referral to an AMCP.  It is not clear who this independent reviewer is or who they work for or to what extent they duplicate the work of the AMCP.

The report says:

The reviewer cannot be someone who is involved in the day-to-day care of, or providing any treatment to, the person.28 They could be someone employed by the responsible body, but equally they could be from outside. We would expect the new Code of Practice to provide guidance  on the qualities and background of those who should be appointed to this role and ensure that this should be someone of sufficient seniority and experience.

The proposal suggested that the new LPS cover people dependent on alcohol or drugs.  If this was enacted in this way it would have enormous implications on resources and would allow the detention of people dependent on substances solely on that ground (which their families have wished possible for many years). The conclusion as to whether the LPS will include this group of people is not stated in the report. This should be clarified.

In Chapter 13, the Law Commission discusses the interface between their proposals and the Mental Health Act, a subject which has caused much head scratching with regard DOLS and the MHA. They say,

At its heart, fusion law presents a watershed issue of whether it is right to treat a psychiatric patient with capacity who refuses mental health treatment differently from someone with capacity who refuses physical health treatment.

But they have already said above that the LPS will not apply in acute hospitals, i.e. where people are treated for their physical health treatment. Someone who refuses physical health treatment, by their proposal in this report, will be covered by the new Hospitals and Palliative Scheme, which is outside the two LPS categories.

But if the arrangements are for the assessment or treatment of physical disorder, then the Mental Health Act would not be applicable, and the Liberty Protection Safeguards could be used (13.22)

Appears again to contradict what was set out at para 5.16 in this same report. Where will patients be treated for physical disorder? In an acute hospital. Are acute hospitals to be covered by LPS? No, “We proposed that a separate scheme would apply in general hospitals and palliative care.”

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