On 16 May, the controversial Mental Capacity (Amendment) Act 2019 received royal assent. When it comes into force it will sweep away the Deprivation of Liberty Safeguards (DoLS) regime and replace it with Liberty Protection Safeguards, and should clarify the issue for care homes.

Changes were necessary because a backlog in processing DoLS applications meant more than 125,000 children and adults were being unlawfully detained. The backlog arose following the landmark Cheshire West case and another linked case. In this 2014 case, the claimant P’s local council, Cheshire West & Chester, had removed P from his mother’s home and placed him into the care of social services. He lived in a supported-living bungalow and received substantial one-to-one care and supervision. He was also subject to physical intervention to manage behaviour. 

The Court of Appeal, overturning a previous Court of Protection judgment, had ruled in 2011 that this was not a deprivation of liberty because P’s life was as normal as possible for someone with his level of disability, and he would require the same level of supervision in any other setting.

The Supreme Court rejected this unanimously, saying disabled people should not face a tougher standard for being deprived of their liberty than non-disabled people. They said the acid test for deprivation of liberty is whether the person is under continuous supervision and control and is not free to leave. Baroness Hale said: “The fact that my living arrangements are comfortable, and indeed my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.”

This was a significant extension of the concept of deprivation of liberty. Care homes became vulnerable to allegations that they were acting unlawfully. It is worth remembering that even administration of medicine without consent or other authorisation is the criminal offence of battery. Unsurprisingly, the level of DoLS applications rose from a pre-Cheshire West level of 13,000 per year to, last year, 230,000. 

Because of this, one would have thought the passage of the Act through parliament would have been swift. Instead, it has gone back and forth between the two Houses of Parliament. 

Why the problems? 

The delay arose as concerns were raised about the original drafting of the Act. Commentators have criticised the Act for reasons that included:

• People’s individual views and wishes not being given sufficient weight 
• Care home managers being too closely involved with the deprivation of liberty process 
• Insufficient safeguards being fully enshrined in law 
• Complexity of the process 
• An extension of time in the time allowed for review of liberty from one to three years 
• Lack of access to independent advocates.

Some of these concerns appear to have been addressed. The Government confirmed that non-means-tested legal aid would be available for challenges, and there is some separation in the process of authorisation.

The final debate centred on the definition of deprivation of liberty. No definition has been agreed, so it will remain simply as a reference to Article 5 of the European Convention on Human Rights. Instead, guidance about what constitutes a deprivation of liberty will be included in a Code of Practice (as yet unseen). 

For care homes, a particular concern may be the fact that local authorities will be able to delegate their role as the responsible authority that can authorise DoL to the care home manager. The suggestion is that they will only require half a day of training, which seems short. There are queries about whether care home managers will have the time to do this alongside their other responsibilities. Will they have the access to the patient if the patient is new to the home? How are issues of conflict of interest to be resolved? And of course, who will pay for this extra work?

Before we have a complete picture, there needs to be:

1. Preparation of regulations to flesh out matters, including the answers to some of the queries above.

2. The drafting and parliamentary approval of the all-important Code (or Codes) of Practice. Case studies will be included to help understanding. 

Full implementation is unlikely to be before spring 2020. 

Is the new Act the complete answer? 

It is hoped that the Act, once in force, will provide a process that is less burdensome for all concerned. It will never be the complete answer and a huge burden will rest on the Codes to provide clear identification of when a deprivation of liberty is or is not occurring and support many of the practicalities of implementation. 

The above is a general overview and we recommend that independent legal advice is sought for any specific concerns.  

Susan Hunneyball is a solicitor and member of the healthcare team at Charles Russell Speechlys