On the 01st October 2020, we anticipate the Mental Capacity (Amendment) Act 2019 will take effect, bringing certain changes to the Mental Capacity Act 2005. Some of the terminology the emergency services may hear and occasionally wrestle with will change, and the wording of section 4B of the MCA, which governs urgent deprivations of liberty for life-sustaining treatment, will be made more wordy! Calls to #Team999 occasionally do involve patients who are subject to (the current) ‘deprivation of liberty safeguards’, known as DoLS in the current framework, but from October, these orders be replaced by Liberty Protection Safeguards, following literally years of discussions and debate about the DoLS frameworks introduced just over a decade ago. It’s never quite worked as hoped and the 2014 Cheshire West case brought thousands more people with the grasp of DoLS and there have been problems and debates ever since.
Liberty Protection Safeguards are the end result of a Law Commission report and the Government’s own deliberations about how to resolve the problems we’ve all wrestled with. The primary purpose here is not to go over the history in any depth, or enter the “whys and the wherefores”, so if you’re interested that kind of detail and complexityI’d encourage you to read the Mental Capacity Law and Policy blog, by barrister Alex Ruck-Keene (could listen to him all day long) and others. It’s a goldmine of LPS and other resources and links to more detail than could you could probably require!
Here, I’m only going to cover some headlines superficially, focussing on those aspects police officers or paramedics may come across when they bump up against 999 incidents involving patients who lack capacity, including the new Liberty Protection Safeguards (LPS). There is some detail still awaited, so I will probably revisit this topic later in the year, for example when the new Code of Practice to the Mental Capacity Act is published.
Four things will sound like they’ve changed! Whilst no doubt they have changed for local authorities, for lawyers and those affected by the Act, I’m wondering whether these changes amount to much that substantively needs to mess with the heads of hard-working frontline emergency service personnel.
So I’ll try to keep this light! –
The legal challenge in the Cheshire West case (2014) obliged the Supreme Court to consider what a deprivation of liberty was. Oddly enough, the original MCA came about because of the so-called ‘Bournewood’ case (2004) which centred around a man who had been deprived on his liberty under common law. He brought a human rights challenge to his own detention because domestic law contained no way for him to challenge it. The Mental Capacity Act was the result, but the new Act did not define what a deprivation of liberty was(!) and interpretation ran in various directions. By 2014, cases had rumbled through the lower courts towards our highest court to settled the matter and Lady Hale memorably remarked that “a gilded cage is still a cage”. She then outlined the court’s view that someone has been deprived of their liberty if they were subject to “constant supervision, control and unable to leave”. This is the ‘acid test’ on a deprivation of liberty.
There was consideration as the Mental Capacity (Amendment) Bill progressed through parliament during 2018 that the definition should be placed within the new Act itself, so we are all clear about what a deprivation is and therefore, when someone is or may be subjected to one. That didn’t happen – various reasons – and s4B MCA still guides us that people who inflict an urgent deprivation of liberty on another person supposed to lack capacity, are not protected from the legal liabilities that would normally be encountered unless they have done it for certain reasons outlined in the new s4B MCA – and this is where it gets very interesting for the emergency services because the wording will expand this year. Considerably! – it’s not light reading, I’m afraid.
In recent weeks in my own force, there have been debates between paramedics and police officers about coercing people to hospital ‘under the MCA’ following incidents where capacity is being considered or questioned after an incident involving self-injury and concerns about potential suicidality or further self-injury. It always gives rise to the question, not easily answered, about when removing someone to hospital amounts to a ‘deprivation of liberty’ and therefore to the question of whether an urgent deprivation of liberty is justified against the criteria which must apply. And sometimes, it gives rise to requests between the agencies that take no overt consideration of these matters – there is a real need to improve communication, as I recently argued.
I’d be interested to know whether anyone reading this post disagrees with me on the following point and I remain happy to be skooled – but I dont think the extra words massively changes things. The emergency services are often wrestling with this stuff in the context of injury or illness (and not just mental illness) where the MHA cannot be directly applied by police officers, either because they are in private premises or because they are not dealing with a mental illness incident. I’ve given examples before about patients with head injuries after road collisions, for example. Where the MHA cannot be applied by the police, attention can quickly turn to the Capacity Act and I still remain convinced it’s being misapplied and I suspect the complexity of the legislative wording doesn’t help much. It’s going to help less when considerable more words are added!
So I recommend that all police and paramedics who are likely to have these partnership encounters, actually have a bash at the legislation itself – all you can then do is ask yourself whether the intervention you want to do to help the person you think lacks capacity would amount to a deprivation of liberty? Will the person be placed in a situation where they are “under constant supervision, control and unable to leave”? It may be imagined that someone being removed to an Emergency Department where it is anticipated they would be held for hours pending ED assessment and / or some consideration of mental health assessment, might be within that definition. It would therefore seem justified only where the new criteria in s4B MCA are met.
I’ve previously written a specific post about this new wording, so would sign-post you for the sake of not repeating myself and over-extending this post. You should also remind yourself that this change is to the wording on the intervention applied after someone has been declared to lack capacity – the overall principles of the Act and the assessment of capacity are all unaffected by the changes to s4B. The “IDaCURE” test will not need to change; assessment of capacity remains the same; what has to be considered after any declaration of incapacity is what has been extensively reworded.
But I submit it amounts to (more-or-less) the same thing – as far as I or anyone else can tell!