In July 2018, the Government published a Mental Capacity (Amendment) Bill, which if passed into law will reform the Deprivation of Liberty Safeguards (DoLS), and replace them with a scheme known as the Liberty Protection Safeguards (although the term is not used in the Bill itself). Ministers say it will save councils £200 million a year and give ‘swifter access to assessments’.
The Bill draws heavily on the Law Commission’s proposals for reforming DoLS, but generally does not address some of the wider MCA reforms that the Law Commission suggested. So proposed reforms around supported decision-making and best interests are not included, although the omissions have proved controversial, and may be challenged as the Bill goes through Parliament.
Key features of the Liberty Protection Safeguards (LPS)
- Like DoLS (but contrary to the Law Commission’s suggestion) they start at 18. There is no statutory definition of a deprivation of liberty beyond that in the Cheshire West and Surrey Supreme Court judgement of March 2014 – the acid test.
- Deprivations of liberty have to be authorised in advance by the ‘responsible body’
- For hospitals, be they NHS or private, the responsible body will be the ‘hospital manager’.
- For arrangements under Continuing Health Care outside a hospital, the responsible body will be the local CCG (or Health Board in Wales).
- In all other cases – such as in care homes, supported living schemes (including for self- funders), the responsible body will be the local authority.
- For the responsible body to authorise any deprivation of liberty, it needs to be clear that:
- The person lacks the capacity to consent to the care arrangements
- The person is of unsound mind
- The arrangements are necessary and proportionate.
- To determine this, the responsible body must consult with the person and others, to understand what the person’s wishes and feelings about the arrangements are.
- An individual from the responsible body, but not someone directly involved in the care and support of the person subject to the care arrangements, must conclude if the arrangements meet the three criteria above (lack of capacity; unsound mind; necessity and proportionality).
- Where it is clear, or reasonably suspected, that the person objects to the care arrangements, then a more thorough review of the case must be carried out by an Approved Mental Capacity Professional.
- Where there is a potential deprivation of liberty in a care home, the Bill suggests the care home managers should lead on the assessments of capacity, and the judgment of necessity and proportionality, and pass their findings to the local authority as the responsible body. This aspect of the Bill has generated some negative comment, with people feeling that there is insufficient independent scrutiny of the proposed care arrangements.
- Safeguards once a deprivation is authorised include regular reviews by the responsible body and the right to an appropriate person or an IMCA to represent a person and protect their interests.
- As under DoLS, a deprivation can be for a maximum of one year initially. Under LPS, this can be renewed initially for one year, but subsequent to that for up to three years.
- Again, as under DoLS, the Court of Protection will oversee any disputes or appeals.
- The new Bill also broadens the scope to treat people, and deprive them of their liberty, in a medical emergency, without gaining prior authorisation.
According to some campaigners there is fear that vulnerable old people face being ‘effectively imprisoned’ in care homes if Ministers press ahead with cost-cutting changes to the way that service users are assessed, campaigners fear. They argue that care home managers will become ‘both judge and jury’ in cases involving the freedom of their clients, many of whom have dementia.
At present the friends or family of those lacking the mental capacity to decide where they live can object to a home’s decisions about their care by applying for an independent review. But the Government is scrapping the existing Deprivation of Liberty Safeguards (DoLS) system because they say it is too slow and expensive.
But critics say the move will strip vital rights from the most vulnerable.
Crucially, the new rules would do away with the automatic right to a review by an independent ‘best interest assessor’. Instead, care home managers will carry out ‘consultations’ about what should happen to a service user.
Judy Downey, from the Relatives & Residents Association, said: ‘Care home managers will become both judge and jury in cases in which they may well be involved. That is neither fair nor appropriate. ‘She added: ‘Staff on our helpline hear far too many examples of people deprived of their liberty, seemingly for no reason except that it’s thought best by the care home.
‘At the moment they or their relatives can challenge such decisions. But under these short-sighted proposals they will lose that right, raising the frightening possibility that individuals will be effectively imprisoned in homes that are totally unsuitable for them.’
The Department of Health and Social Care said: ‘The Bill ensures that authorisations for people to be deprived of their liberty in care homes are determined by responsible bodies such as local authorities or clinical commissioning groups.’
Although some ministers claim the Liberty Protection Safeguards will save will save councils £200 million a year and give ‘swifter access to assessments’ it is questionable that the proposed changes will prove to be a smooth transition. Service user’s families and carers will not take to kindly to a care home manager determining what is the best for their loved ones, nor would one think that managers would welcome this new responsibility.
My major criticism of the new bill is that it relies on the profession judgment of social care workers and deprives relatives and friends from contributing to the decision making process.
Albert Cook BA, MA & Fellow Charted Quality Institute
Bettal Quality Consultancy