National Preventive Mechanism Eleventh Annual Report 2019–20 The Mental Capacity (Amendment) Act 2019 replaces the current Deprivation of Liberty Safeguards (DoLS) with a new scheme known as Liberty Protection Safeguards (LPS), and a public consultation on the draft regulations and Code of Practice for LPS is planned. The Act reforms the process for authorising arrangements for a person’s care or treatment which amount to a deprivation of their liberty, where the person does not have the capacity to consent to these arrangements, amending the Mental Capacity Act 2005. A key change is that LPS may be authorised in any setting in which the criteria are met (as opposed to DoLS applying to care homes and hospitals only). This includes settings like supported living or domiciliary care, which are currently regulated by CQC. It also includes some settings that are not within the scope of CQC’s regulation and oversight, such as private residences where a person may need to be deprived of their liberty in order to enable arrangements for their care and treatment, yet not be in receipt of services regulated by CQC. Once LPS are in place, NHS hospitals, Clinical Commissioning Groups and local authorities may be authorisers of them. As well as this, 16–17-year-olds will be in scope of LPS, bringing the age range covered by LPS in line with other provisions in the Mental Capacity Act 2005. The CCE and Ofsted have engaged with the Department of Health and Social Care (DHSC) on this particular development. CQC worked with the DHSC and key stakeholders throughout the reporting year to discuss how it might adapt its monitoring and regulation to include the increased range and number of detention settings under LPS. 24 25 26 16 In the meantime, the DoLS scheme continues to operate. Now over 10 years old, the current DoLS code of practice does not reflect impacting case law, such as the 2014 Supreme Court ruling on the case of P v. Cheshire West which prompted the creation of the Mental Capacity (amendment) Act.24 More recently, in September 2019 the Supreme Court issued a judgement on detention and parental consent, In the matter of D (A Child), ruling that parental responsibility is not sufficient for lawful authority for the deprivation of liberty of a 16- or 17-year-old child who lacks capacity to consent.25 Lawful deprivation of liberty would therefore need to come through other means, and parental consent is not an option to consider before using detention under the Mental Health Act 1983 as current guidance implies. Secure hospitals for people with a learning disability and autistic people In May 2019, a BBC Panorama documentary exposed a culture of abuse at Whorlton Hall, a secure hospital for people with a learning disability and autistic people in County Durham, causing widespread concern both about the treatment and why it had not been uncovered in previous inspections. Following the broadcast of the documentary, CQC took steps to look at how it could improve its inspection and monitoring in ‘closed cultures’.26 CQC commissioned two independent reviews considering the situation at Whorlton Hall. In January 2020, the first independent review, by David Noble, was published, considering actions taken by CQC following an inspection of Whorlton Hall in 2015. The review found CQC’s decisions to In P v Cheshire West three individuals with severe learning disabilities were living in arrangements deemed by the court to represent a deprivation of liberty. The ruling placed increasing burdens on local authorities and health and social care practitioners administering the DoLS. The Law Commission subsequently recommended that DoLS be abolished and proposed a replacement scheme set out in a draft Bill. UK Supreme Court, September 2019, In the matter of D (A Child), https://www.supremecourt.uk/cases/docs/uksc-20180064-judgment.pdf [accessed 24/08/2020] For more information see: CQC (webpage), Our work on closed cultures, available: https://www.cqc.org.uk/publications/ themes-care/our-work-closed-cultures [accessed 24/08/2020]