Monthly Archives: November 2018

Mental Capacity (Amendment) Bill and DoLS: Welcome but flawed concession

A useful byproduct of the Brexit madness in the UK Houses of Parliament seems to have been a small outbreak of moderately good sense in a matter far removed from the political hurly burly. To avoid a defeat in a fractious House of Commons, the Government has taken on board serious worries and U-turned over a proposal in the Mental Capacity (Amendment) Bill that is intended to deal with the debacle over the law on deprivation of liberty safeguards (DoLS) for those in care lacking mental capacity.

Those new to this subject may wish to start here: Deprivation of Liberty Safeguards Chaos. But, in brief, the judgment in P v Cheshire West ([2014] UKSC 19), left care providers having to take to court huge numbers of cases over potential deprivation of liberty of people lacking mental capacity. The issue was summed up thus:

“This case is about the criteria for judging whether the living arrangements made for a mentally incapacitated person amount to a deprivation of liberty. If they do, then the deprivation has to be authorised, either by a court or by the procedures known as the deprivation of liberty safeguards [DoLS], set out in the Mental Capacity Act 2005 (“the Mental Capacity Act”). If they do not, no independent check is made on whether those arrangements are in the best interests of the mentally incapacitated person.” (Cheshire West at 1)

Cheshire West was  intended to deal with the problem that local authority packages of care for people who lack mental capacity may constitute a breach of Article 5 of the European Convention on Human Rights on right to liberty.  This, even though the care may have been in a care home or the individual’s own home – a situation characterised as “gilded cages” by critics of the judgment. So deprivation of liberty can occur “in community and domestic settings where the State is responsible for imposing such arrangements” including supported living arrangements (Department of Health Guidance, October 2015).

Courts became the only backstop to gain authorisations for people lacking mental capacity (so unable to consent to deprivation of liberty) in care homes, or their own home under a care package, to prevent this putative deprivation of liberty occuring without legal sanction. Continue reading

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