Mental Capacity (Amendment) Bill, which would introduce LPS. The bill is on the verge of becoming law, but for the House of Commons and Lords agreeing a final version.
The analysis has been produced by five of the major care provider bodies – the Association for Real Change, Care England, the National Care Association, the National Care Forum, the Registered Nursing Home Association and the Voluntary Organisations Disability Group.
Increased role of care home managers Under DoLS, local authorities – in their role as ‘supervisory body’ – are responsible for the whole process of assessment and authorisation of people who may be deprived of their liberty in care homes. Care homes have a significant role as ‘managing authorities’, under which they must apply for authorisations and, where an authorisation is given, ensure that the person understands the effect of it and their rights to challenge the authorisation. They must also request a review of the authorisation if it appears any of the qualifying requirements are not met. However, under LPS, a number of functions currently carried out by local authorities, or mental health or best interests’ assessors (BIAs) on their behalf, would be passed to care home managers in cases where the local authority determines this should happen. The local authority – as responsible body – would otherwise retain the roles. The analysis said the new responsibilities included:
identifying whether the cared‐for person is or is not deprived of their liberty in accordance with the statutory definition in the bill; • deciding if the cared‐for person’s deprivation of liberty should be authorised under the Mental Health Act rather than the LPS; • arranging assessments of whether the person lacks capacity to consent to their care arrangements and whether or not they have a mental disorder, two of the three criteria that must be met for a deprivation to be authorised; • selecting an appropriate assessor to carry out the assessment of whether the deprivation of liberty is ‘necessary and proportionate’, which is the third criterion; • choosing the right person determine whether those assessments support a care plan which deprives the person of their liberty within this care home and this care plan; • consulting the cared‐for person’s relatives or friends, including attorneys, deputies and advocates, to ascertain the person’s wishes and feelings about their restrictive care plan; • identifying possible objections to the proposed care plan on the part of the person or their relatives/friends; • highlighting the need for the responsible body to instruct an approved mental capacity professional (AMCP); • deciding who should be the person’s representative; • deciding whether to appoint an independent mental capacity advocate (IMCA) and notifying the local authority of relevant details about the cared-for person and their representative; • ensuring that the relevant responsible body has commissioned and acquired a pre‐ authorisation review; • drafting a legally robust authorisation for signature by the local authority.