The Mental Capacity (Amendment) Bill was introduced to the House of Lords on Tuesday 3 July and seeks to replace the current system known as ‘Deprivation of Liberty Safeguards’ (DoLS).
DoLS has been criticised by a 2017 Law Commission review for being too complex and bureaucratic. In their report, the Law Commission made it clear that the DoLS needed to be replaced as a matter of pressing urgency.
The government has now developed a new system, known as ‘Liberty Protection Safeguards’ (LPS), which will become law through the bill.
The reforms seek to:
- introduce a simpler process that involves families more and gives swifter access to assessments
- be less burdensome on people, carers, families and local authorities
- allow the NHS, rather than local authorities, to make decisions about their patients, allowing a more efficient and clearly accountable process
- consider restrictions of people’s liberties as part of their overall care package
- get rid of repeat assessments and authorisations when someone moves between a care home, hospital and ambulance as part of their treatment
DoLS and the new system are both intended as a safeguard to ensure people are only deprived of their liberty when it is in their best interest, for example, to keep them safe.
What will the changes mean for health and social care providers?
There are 3 key three key points you need to know about the new LPS.
- No best interests assessment
Under DoLS, when an application is made to deprive a person of their liberty in a care home or hospital, the council or health board overseeing the process appoints a best interests assessor (BIA) to determine whether the person is, or will be deprived of their liberty, and, if so, whether this is in the person’s best interests, necessary to prevent harm and proportionate to the likelihood and seriousness of that harm. This is the best interests assessment.
In line with the Law Commission’s blueprint, the bill would abolish the best interests assessment and put in its place an assessment of whether the arrangements are “necessary and proportionate”. This means that less intrusive measures have been found to be insufficient for safeguarding the person or possibly other people.”
The commission said the necessary and proportionate test was in line with case law from the European Court of Human Rights. It also concluded that the current best interests assessment added nothing to the necessary and proportionate test as there was often no realistic alternative to the care placement being considered.
The commission said that having to meet a best interests test causes complications in cases where the need to deprive a person of their liberty was connected to the risk of harm to other people.
- Increased role for care homes
The reform bill seeks to reduce the burden on local authorities of the DoLS system in a number of ways. Firstly, in England, local authorities will no longer be the body responsible for authorising deprivations of liberty in health settings; this role will pass to hospitals, in the case of hospital arrangements, and to clinical commissioning groups in relation to continuing healthcare arrangements.
Secondly, where the arrangements leading to the deprivation of liberty are in a care home, responsibility for managing the process will fall to the care home manager, though the local authority will be the “responsible body” with the role of signing off the authorisation.
This is one of the most significant departures from the Law Commission’s proposals.
It means that care home managers will need to arrange assessments of whether a person lacks capacity to consent to the arrangements giving rise to the deprivation of liberty, and whether they are of “unsound mind” or decide whether pre-existing assessments can be relied upon.
They must also arrange an assessment of whether the arrangements are necessary and proportionate, which must be carried out by someone with “appropriate experience and knowledge” to make the determination.
The care home manager will also need to have consulted with anyone named by the person as someone to be consulted about such arrangements, along with any attorney or deputy, carer, appropriate person or advocate.
The manager must also have determined whether the person is objecting to the arrangements – if so, their case will be reviewed by an approved mental capacity professional, a new role that will be created by the legislation designed to provide independent oversight.
The government’s view is that this will be more efficient on the basis that it will remove the duplication of assessments that care homes would be doing anyway.
However, this point is hotly contested and the proposals have raised significant concerns, including that care home managers will face a conflict of interest in being responsible as they may be reluctant to identify issues that leave themselves open to greater scrutiny or even legal liability.
- Renewals introduced
Unlike DoLS, under which a fresh authorisation needs to be secured every time an existing one expires, the LPS system makes deprivation of liberty authorisations renewable. A one-year renewal can be awarded after the first year if the responsible body is satisfied that the authorisation conditions continue to be met and it is unlikely that there will be any significant change in the person’s condition during the renewal period. Following this first renewal, further renewals of up to three years can be authorised.
In care home cases, the local authority is responsible for the renewal, but this is based on a statement made by the care home manager that the authorisation conditions are met, the person’s condition is unlikely to change significantly and the manager has carried out consultation with the same group of people that need to be consulted in the case of an authorisation.
A number of potential problems have been highlighted with LPS. The House of Lords will continue scrutiny of the bill, and maybe subject to further changes before it is enshrined in law.