The Mental Capacity (Amendment) Bill reached parliament last week. New legislation can complement revisions to the Mental Health Act, writes Professor Sir Simon Wessely.

Your father has dementia. He is in a care home. You get distressed because he no longer recognises you. But as far as you can judge he seems content. Occasionally he has been known to wander out towards a busy main road. When that happens a care worker will chase after him and guide him back into the home. Not a problem you might think, but you would be wrong. He has been what we call "deprived of his liberty" because his right to go where he wishes has been curtailed, and because of his dementia he doesn’t understand enough to be able to agree, or disagree, with the fact that someone is stopping him from leaving the grounds of the home. 

Justified interference

Since 2009 there has been a legal procedure to ensure that the state, because that is what we are talking about, can be assured that this interference in his life is justified, and is being carried out in his best interests. It is known as the Deprivation of Liberty Safeguards, or DOLS for short. Sometimes this seems to be a good thing, because sometimes people lacking what we call “capacity” – namely a level of mental functioning that enables them to know what is going on in their lives and then to be able to agree or disagree with it, are indeed kept in circumstances that really aren’t in their best interests, and where actually they are giving sufficient signs that they don’t really like what is going on, and it is necessary for this to be changed.  

But actually that is not very common. More common is the experience that my family had. My mother died a few years ago in a hospice. Her care could not have been better, and we, her family, took tremendous comfort from the way she was looked after in her final weeks. Towards the end she became very confused, and at times had to be gently persuaded that trying to roll out of bed was not a good idea, as she was so weak now that she couldn’t stand or walk. 

She died peacefully a couple of days later. But I knew that the wonderful staff were actually depriving her of her liberty, the liberty to fall out of bed and almost certainly break a bone or endure bruising which would add to her distress. And therefore the DOLS procedures, with multiple independent assessments, forms to fill in running to tens of pages and so on and so forth, should have been implemented. To tell us that the nursing staff were indeed doing what was obvious to all of us – acting in her best interests. Thankfully no one suggested it. 

A quick glance at the statistics will show the scale of the problem. Last year over 200,000 DOLS applications were made, a number certain to rise. The average length of time taken to complete the assessments was 120 days, with a backlog of 108,000 cases. A report from the well respected Law Commission estimated that the annual cost of all this might end up being close to £2billion (yes, you read that correctly) a year.  And it is not just costly, it is also a very slow process indeed.  Not surprisingly a lot of people get very upset by all this, when, as is the case in the vast majority of cases, the end result is nothing, a legal confirmation that they are indeed doing the right thing for their relative, and not exploiting or abusing them.

However, this month it seems clear that the end is in sight for the Deprivation of Liberty Safeguards, at least in their present form. Because more and more people have been criticising these DOLS as being legislation which managed the feat of both making the safeguards around the care in hospital or care home of those with impaired capacity overly complicated but at the same time still failing to deliver any safeguards to those being cared for in supported living placements and other sites of modern health and social care. 

So the Government should therefore be congratulated for asking the Law Commission to come up with something better, which they have. These are known as the Liberty Protection Safeguards, and are an important rebalancing of priorities for the care of the vulnerable, which are not just people with dementia, but those admitted to hospital with confusional states due to a wide variety of illnesses, those with severe learning disabilities, or survivors of terrible head injuries.

The new proposals [Editor's note: the new proposals entail allowing NHS staff rather the Court of Protection to oversee when and where to deprive people of their liberty] strike a better balance between the importance of care planning and the provision of (all too often) perfunctory and box-ticking procedural safeguards around that care. And moving more quickly than many might have predicted, the Government this month has introduced the Mental Capacity (Amendment) Bill into Parliament to try and improve the situation, removing what is clearly an unnecessary intrusion whilst keeping genuine and effective safeguards.

Meanwhile, I need to declare an interest. As I suspect many readers of Mental Health Today will know, I have been chairing the Independent Review of the Mental Health Act announced by the Prime Minister a year ago. The Mental Health Act is very different to DOLS, but there are overlaps, and these overlaps are adding to the general confusion.

Dividing line

In particular, we need to identify where the right dividing line is between the Mental Capacity Act and the Mental Health Act. At the moment some people lacking the capacity to consent to their admission for care and treatment will fall under the Mental Capacity Act and the Liberty Protection Safeguards, and some will be detained under the Mental Health Act, but the boundaries between the two are not clear.  Comparing the two regimes is like comparing apples and pears – they carry with them different rights, and also entitlements – and identifying when one should be used over the other is not straightforward. One thing is clear, though, that the answer must be simple in any given situation so that arguing over the framework does not get in the way of delivering the care that the person needs. 

We will also need to consider whether it is right that there are circumstances under which a person is under a provision of the Mental Health Act in the community, including those currently happening under Community Treatment Orders (CTOs), and also, separately, an authorisation under (in future) the Liberty Protection Safeguards. In the name of protection of their rights, such a person would be under parallel regimes, administered through different mechanisms, and supervised by different judicial bodies.

Again, there are difficult arguments pointing in different directions, but one thing is clear to me, namely that a person who wishes to challenge arrangements made for them should be able to do so as quickly and simply as possible. Our suggestion in our Interim Report of standardising the legal oversights offered by the Court of Protection and the Tribunals is a step in this direction.

We will, finally, be looking hard at the definition of deprivation of liberty in the context, because perhaps that is also adding to the confusion. Have we got it right? The Joint Committee on Human Rights published their investigation only last week, and they thought that the answer was no, we haven’t. They have recommended that a new legal definition of deprivation of liberty is debated and defined, which could “produce greater clarity and would extend safeguards only to those who truly need them, whilst respecting the right to personal autonomy of those who are clearly content with their situation, even if they are not capable of verbalising such consent.” 

You may think this is splitting hairs, but it’s not. Because if we don’t get this right, we may end up in our mental health system where we were over a hundred years ago, when the only way to get admitted to a hospital was by a legal order. It was impossible to be in hospital because you yourself felt that you needed to be in hospital. In other words “informal” patients who have consented to be in hospital, and likewise can leave if they change their mind. These days as the number of beds in psychiatric hospitals has reduced dramatically – since the start of the NHS 70 years ago 90% of all beds have gone – informal patients are much less common than they used to be, but it would be sad if we put the clock back 100 years and made it almost impossible to be in hospital without some legal order or other.

At the moment it remains unclear how this will develop. I myself do not think the issue is fully resolved, and all of us connected with my review are working hard to see what recommendations we can make to deal with the outstanding issues concerning the interactions between the two Acts. 

Perhaps one day we might be able to have a single act that covers both mental illness and mental capacity – in other words a “fusion” act. That has definite advantages, and Lady Hale, the President of the Supreme Court made it clear last week this is what she favours, although there also some drawbacks as well.  But for the moment this new Bill which was introduced this month is a good start, and I welcome it.

Professor Sir Simon Wessely is Regius Chair of Psychiatry at King’s College London and Chair of the Independent Review of the Mental Health Act.