LocalGovernmentLawyer Adult Social Care 2017 19 Monitoring (Chapter 12) The draft Bill gives the Government regulation- making powers to require bodies to monitor and report on the operation of the new scheme (such as the CQC and Ofsted). The regulations could be used to allow visits of certain types of institutions, more frequent visits in some cases, and “light-touch” forms of regulation in certain settings. Mental Health Act interface (Chapter 13) The report urges the Government to review mental health law in England and Wales with a view to the possible introduction of mental capacity-based care and treatment for mental as well as physical disorders (“fusion law”). In lieu of this, the draft Bill provides that the Liberty Protection Safeguards cannot be used: • to authorise arrangements carried out in hospital for the purpose of assessing or treating mental disorder, and • to authorise arrangements which are inconsistent with any requirement under one of the “community powers” of the Mental Health Act (such as guardianship or a community treatment order). Wider reforms of the Mental Capacity Act (Chapter 14) The draft bill includes wider reforms to the Mental Capacity Act. These reforms are intended to provide Article 8 rights and improve decision-making under the Mental Capacity Act – regardless of whether a person is being deprived of their liberty. The draft Bill contains three reforms in this respect: • The best interests checklist in section 4 of the Act is amended to require greater weight to be given to ascertainable wishes and feelings. • The statutory defence under section 5 of the Act would not be available to professionals in respect of certain key decisions unless a written record has been prepared, which confirms a number of matters, for example that a formal capacity assessment has been undertaken and rights to advocacy have been given effect. • The Government is given regulation- making powers to establish a supported decision-making scheme. Advance consent (Chapter 15) The draft Bill would enable a person to give advance consent to specified arrangements that would (but for that consent) give rise to a deprivation of liberty. If advance consent is given, the arrangements would not amount to a deprivation of liberty and therefore the Liberty Protection Safeguards would not apply. The person must clearly articulate the particular arrangements to which they are consenting. In line with the law on advance decisions to refuse treatment, advance consent would remain valid unless: • the person withdraws their consent when they have capacity to do so; • there are reasonable grounds to believe that circumstances exist which the person did not anticipate at the time of giving the advance consent and which would have affected their decision had he or she anticipated them; or • the person does anything else clearly inconsistent with the advance consent remaining their fixed decision. Interim and emergency deprivation of liberty (Chapter 15) The Law Commission’s intention is to bring forward formal consideration of the justification for a deprivation of liberty so that it occurs before the arrangements are made, rather than only afterwards. The DoLS system of urgent authorisations is therefore abolished. Instead, the draft Bill gives statutory authority to deprive someone of liberty temporarily in truly urgent situations and in sudden emergencies, but only to enable life- sustaining treatment or to prevent a serious deterioration in the person’s condition. Apart from those cases, it would not be permissible to impose a deprivation of liberty on someone until the proposed arrangements have been authorised. Unlawful deprivation of liberty (Chapter 15) The draft Bill provides that where care or treatment arrangements are put in place by, or on behalf of, a “private care provider” (defined as, broadly speaking, the managers of private care homes and independent hospitals) which give rise to a deprivation of liberty (and have not been authorised), the person may bring civil proceedings against the provider. The provider would not be liable if it reasonably believed that the arrangements did not give rise to a deprivation of liberty or the deprivation of liberty was authorised. Coroners (Chapter 15) The draft Bill would amend the Coroners and Justice Act 2009 to provide that the duty to hold an inquest would not apply automatically to people subject to the Liberty Protection Safeguards. The Law Commission also recommends there be additional safeguards in place when a death is attributed to a lack of care. Practical impact of reform • Local authority social care practice - the local authority would no longer be responsible for all authorisations. The NHS would be a responsible body in certain cases (ie hospital and NHS continuing health care cases). The local authority would be responsible for approving Approved Mental Capacity Professionals • SEN provision post 16 if the placement is residential - The Liberty Protection Safeguards can authorise arrangements which give rise to a deprivation of liberty for 16 and 17 year olds. It would therefore no longer be necessary to apply to the Court of Protection in such cases. • Patients and service users - in most cases, a deprivation of liberty can only be authorised before the person can be deprived of their liberty rather than afterwards. There would continue to be rights to advocacy, regular reviews and access a court. • Families - Families must be consulted before an authorisation can be given. Family members can also act as the appropriate person if they wish to do so. Families can also trigger reviews of the authorisation and access to a court. • Catastrophic injury claims - If a lawyer is aware that the person’s care or treatment arrangements may amount to a deprivation of liberty, they could request that an authorisation is given by the responsible body, rather than having to take the case to court. Tim Spencer-Lane is a lawyer at the Law Commission. This article was originally published in LexisPSL Public Law. 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