Until relatively recently, people with diminished mental capacity had all their decisions made for them. Today, it’s rather more complex and there are plenty of cases where someone’s decisions may be called into question but are upheld.

In the same way, there has been a general acknowledgement that people whose freedom is restricted should be safeguarded, even when they’re perfectly happy with the situation.

In light of the ongoing coronavirus pandemic, emergency legislation has been introduced to Parliament that includes temporary measures to change the Mental Health Act. This is because the government is concerned that Covid-19 will reduce the number of mental health professionals available to help people whose mental health places them at risk.

According to Rethink Mental Illness, these changes will not apply from the moment the legislation is passed but may be activated if the crisis worsens.

What is mental capacity?

It’s estimated that around two million people in England ‘may lack the mental capacity to make a specific decision at the specific time required’.1 In England and Wales, these people are covered by the Mental Capacity Act 2005 (MCA) (elsewhere, it’s the Adults with Incapacity (Scotland) Act 2000 and Mental Capacity Act (Northern Ireland) 2016).

The act is based on the principles that a person must be assumed to have capacity unless it is established otherwise; that they are not to be treated as unable to make a decision unless all practicable steps to help them to do so have been tried; that they are not incapable of making a decision just because they make an unwise decision; that any decisions or acts on behalf of people who do lack capacity should be in their best interests; and the ‘least restrictive option’ should always be made a priority.

Questions around mental capacity will impact on advance care planning for Covid-19. A joint statement from the Care Quality Commission, British Medical Association, Care Provider Alliance and Royal College of General Practitioners recently set out their shared position on the importance of advance care planning being based on the needs of the individual.

It said that where a person has capacity, as defined by the Mental Capacity Act, this advance care plan should always be discussed with them directly. Where a person lacks the capacity to engage with this process then it is reasonable to produce such a plan following best interest guidelines with the involvement of family members or other appropriate individuals.

Such advance care plans may result in the consideration and completion of a Do Not Attempt Resuscitation (DNAR) or ReSPECT form. The statement added that it remains essential that these decisions are made on an individual basis and the GP continues to have a central role in the consideration, completion and signing of DNAR forms for people in community settings.

Safeguards and restrictions

The most recent report of the National Mental Capacity Forum pointed out, ‘Progress in changing attitudes and practices around each [principle] has gone at different speeds’.2 One area which has been refined – to the point that it’s now the subject of new legislation – is the whole question of ‘deprivation of liberty’.

The current Deprivation of Liberty Safeguards (DoLS) legislation requires care homes and hospitals in which a person is ‘deprived of liberty’ to apply to a ‘supervisory body’, which in most cases is the local authority, for authorisation.

“This doesn’t necessarily change the care arrangements, but it may also  identify problems with the care arrangements that need to be addressed,” explains Paul McGough of DAC Beachcroft, who is the co-chair of the Law Society’s Mental Health and Disability committee.

The Mental Capacity (Amendment) Act 2019 received Royal Assent on 16 May 2019. Once this is formally enacted, along with the code of practice which will clarify it, the current Deprivation of Liberty Standards (DoLS) will be replaced with a new scheme called the Liberty Protection Safeguards (LPS).

One major change with LPS is that these will apply to other settings as well as hospitals and care homes: supported and/or shared living will also be covered, and so will private homes.

They also apply to arrangements like transport or day centre arrangements. “In one way it’s useful, because it means LPS all follow the person, whereas DoLS are specific to the setting,” adds Sukhi Kaur, policy officer at the Alzheimer’s. Society. “It does also mean that the system becomes more complex, there are new roles created that weren’t there before, and CCGs will now get involved too.” (They also apply to people aged 16 and 17 for the first time).

The ‘responsible body’ which authorises LPS applications will also be extended. At the moment, they are all submitted to the local authority, as the ‘supervisory body’. The new ‘responsible body’ will now include hospitals, for inpatients (though not independent hospitals – the responsible body for these will remain the local authority) and CCGs, for people receiving continuing health care.

“There will be more applications, and bodies that aren’t doing this now will have to learn to do it,” says McGough. An LPS will also be much longer-lasting than a DoLS, as it can be renewed for one year and after that for a further three. 

Liberty Protection Safeguards process

Before the LPS arrangements can be authorised, there will first be assessments, compiling evidence of mental disorder and lack of capacity, and an analysis of the restrictions and a statement that they are necessary and proportionate to prevent harm occurring to the person.

One very important new development is that the assessment process may be co-ordinated by a care home manager, if the arrangements are to be carried out mainly or completely within the home and the responsible body believes that it is appropriate for the care home manager to co-ordinate the process. The care home managers will not have any involvement with the review process.

At the same time an ‘appropriate person’ should also be identified to support the person – in addition to anyone who has been named as power of attorney. If there is nobody to take on this role, an independent mental capacity advocate (IMCA) should be appointed. The role carries over from the Relevant Person’s Representative in DOLS. What is new is that an IMCA has to be allocated if friends and family are unable (or unsuitable) to do it. There’s an ongoing debate over whether it’s covered by the existing IMCA regulations.

After that, there is the ‘pre-authorisation review’. If there is no reason to believe that the person objects to the place in which they are living, and/or the care they are receiving this will be a paper-based process carried out by an approved professional.

If there is reason to believe that they do object, the review will be carried out by an approved mental capacity professional (AMCP). This is a new role which is intended to build on the existing ‘best interests assessor’ role in DOLS.

Questions and caveats

One major concern is that in practice the right to an AMCP will be restricted. “The majority of people are unlikely to get one,” says Alice Livermore of Mind: not least because the LPS legislation has dropped the ‘best interest assessment’ criterion for DoLS, under which it was possible to make conditions such as seeing family and friends.

“Identifying an objection is not necessarily straightforward,” points out McGough. “And even if it is, there’s a real disparity in safeguards between those who are and aren’t objecting. The sense is that those who are acquiescing get the in-house review, not one done by an independent specialist.”

Covid-19 and Deprivation of Liberty Safeguards

Deprivation of Liberty Safeguards (DoLS) was not included in the emergency coronavirus measures last month. In a House of Lords debate, health minister Lord Bethell, said: “We recognise that we have to strike a careful balance between the need to protect some of the most vulnerable in our society with preventing the spread of the virus."

Emergency guidance will be provided making it clearer when a deprivation of liberty safeguards authorisation is necessary, and the basis on which an assessment can be made, including, for example, phone or video calling for assessment.

This means that local authorities must continue to apply the DoLS regime to avoid a breach in convention rights, which they still have the duty to uphold, even after the commencement of the Coronavirus Act 2020.

  1. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/595617/nmcf-chair_s-report-2016.pdf
  2. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/815693/third-annual-report-of-the-NMCF.pdf


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