Winterbourne View, Whorlton Hall and, most recently, Cawston Park Hospital have highlighted failures in England’s social care system. They also expose shortcomings in how deprivation of liberty safeguards, or DoLS as they are known, are applied. Ed Watkinson, Residential Care and Inspection Specialist at QCS, tells us more.
It wasn’t just the 2011 Panorama documentary, which highlighted systematic abuse and failings at Winterbourne View, that put the Department of Health and Social Care (DHSC), the courts and the Care Quality Commission (CQC) under pressure to reform DoLs orders.
Instead, it was Cheshire West, a 2014 case that was eventually settled in the Supreme Court, that paved the way for wholesale reform. Many of you reading this article will already be familiar with Cheshire West. But, if you’re not, its legacy was to provide the social care system with a litmus test as to whether somebody was being deprived of their liberty. The acid test comprised two simple questions: ‘Is the person in question subject to continuous supervision and control?’ and ‘Is the person free to leave?’ If the person is subject to continuous control or isn’t free to leave, then this may well be constituted as deprivation of the person’s liberty.
The gilded cage
However, in reaching its decision, the Supreme Court’s ruling decreed that these two questions did not adequately address the subtleties of DoLs. The court placed an emphasis on upholding the liberty of people who were unable to leave a residential setting, even if they were not making overt attempts to leave the premises. The Supreme Court stated that a cage is still a cage, even if it is ‘gilded’; in other words, service users, who were perhaps enjoying the setting they were living in but were unable to leave, should still be protected and only have their liberty restricted if there was a due legal process followed.
On the surface, this seemed a small change in how the liberty laws should be interpreted, but it actually had a seismic effect on the social care sector and local authorities. Suddenly, councils found themselves inundated with DoLs applications as they were made for many more people judged as lacking capacity, and not just the service users who were attempting to leave but those who would be prevented from leaving even if they had made no attempts to leave. As a result, there was a ten-fold increase in applications, which led to long delays and the inability of local authorities to manage and respond within required timeframes.
Brexit and COVID delays
Eventually, the Government decided to act. In an attempt to understand the issues more clearly and develop an alternative way of managing the complex issues surrounding the limiting of a person’s liberty, it brought in the Law Commission to help. It took three years for the Law Commission to publish its findings, which were essentially that the DoLs process was an administrative and bureaucratic nightmare and unworkable in its current form.
That was seven years ago. Frustratingly, the social care sector is still waiting for the Liberty of Protection Safeguards (LPS), which will replace DoLs, to come into being. All we know at present is that the Government has said that, subject to a consultation, the LPS regulations and the 25 chapters that make up the code of practice will come into force in April 2022.
So, why has it taken so long to replace the strained DoLs process? A combination of changes to the role of registered manager, Brexit and COVID-19 has brought sizeable delays to the reform process. It has even led some to speculate that the April 2022 deadline will not be met.
Preparing for great change
It is crucial, however, regardless of further delay, that those working in the care sector suitably prepare for the new ruling to come in. So, where do care services start? I believe that, if you want to understand the future, you must know the past. A key question, therefore, is what will not change when the new LPS code of practice is finally enacted? Well, the LPS process is still heavily based on the Mental Capacity Act. In other words, it still requires that decisions are made in a vulnerable person’s best interests and there is no change to the process for assessing a person’s capacity.
The key change, however, in my mind at least, is an exceptionally nuanced one. The clue is in the wording. There is, I feel, a clear shift of emphasis in the diction. If you compare the two titles, DoLs assumes that someone is going to be deprived of their liberty, while the LPS is much more positive in that it is focused on protecting a person’s liberty. That represents a huge sea-change in thinking.
Going forward, the main driver will be centred on a person’s mental, emotional and spiritual wellbeing. And, for this to happen, LPS requires that an appropriate person or an Independent Mental Capacity Advocate (IMCA) be appointed at the outset. However, the LPS process differs from DoLs in that, under the DoLs code of practice, appointing an appropriate person was a mandatory duty. In the LPS code of practice, however, the legislation states that responsible bodies should make every possible effort to provide service users with an appropriate advocate. So, this change could, in effect, mean less protection for the individual, as the appointment of someone to support the individual may not be provided.
A second change is that the LPS code of practice is applicable to anyone over 16 years of age, whereas now any restriction of liberty for people under the age of 18 has to go through the Court of Protection process.
LPS will also apply to many more settings and is not restricted to residential care homes. Any community setting, such as extra care, live in care, supported living arrangements or even home care, may be subject to an LPS authorisation. This again will add to the burden on the local authority, which in the vast majority of social care cases will be the responsible body.
LPS orders travel with the person
The third significant departure from DoLs is that, when an LPS order is granted, it is not fixed to one particular setting. Instead, the LPS will travel with the person wherever they go – even if they are transferred from a care setting to hospital.
I also welcome the fact that there is ‘no wrong door’ to inform the responsible body of an LPS issue. In other words, applicants do not need to submit a complicated and onerous form. Nor do they need to navigate their way through a maze of supervisory bodies and managing authorities. Under LPS, this has been abolished. Instead, they’ll be able to simply pick up the phone or write an email to the local authority. The responsible body is then obligated to take the LPS concern forward. This, however, does raise one key challenge. It may be easier for managers to apply for LPS but, on the flipside, they need to understand when and when not to do so.
A further change is that, to relieve potential bottlenecks in the system, the number of assessments that need to be completed to satisfy LPS protocols has been cut from six to three. Care services will also be able to outsource assessments externally, but they must ensure that the assessor carrying out the work does so in an independent and unbiased capacity. Care providers should also ensure that the assessor involves relevant people in the process, including IMCA’s and the appropriate person.
Regarding protocol, while LPS will, in principle, reduce the administration for applicants, it will introduce more checks and balances to ensure that the person being subject to any proposed restriction is fully involved and central to any decision making. For example, an extra layer of compliance has been added to the process in the form of the pre-authorisation review. This has been specifically designed to ensure that the responsible body does not ‘mark its own homework’, will provide a level of objectivity to the process and will hopefully make the approval of an LPS more open, transparent and justified. In terms of ensuring good governance and transparency, registered managers need to remember that an independent person reviews the three assessments to check that the restrictions are appropriate and that the legislation is being met.
Preparation: Why care services should seek the help of a content provider
When the new legislation is finally introduced, like any new protocol, care services will need to hit the ground running. So, how should they do so? My advice for services is to firstly examine all of the DoLs arrangements currently in place and check that they understand the current position of each one. This will ensure that providers are best placed to cope with a period of upcoming transition and to enhance staff learning in this important area. In fact, I would go further. I would actively encourage them to appoint a designated Mental Capacity Champion with responsibility for looking at, and sharing the implications for the service, of the upcoming LPS.
Secondly, I would strongly recommend that services enlist the help of a compliance and content provider. The advantage of using a platform such as the one administered by Quality Compliance Systems (QCS), the leading provider of content, guidance and standards for the social care sector, is that it delivers updates whenever an area of regulation changes. But not only this: QCS provides all the tools that front-line staff need – including workforce development plans, risk assessments and auditing tools – to equip staff for their LPS journey.
In addition to QCS, I would also suggest that care services sign up to receive updates from both Skills for Care and the Social Care Institute for Excellence (SCIE), while also regularly checking in to the DHSC’s website too.
Thirdly, it is not just the LPS that front-line staff need to be aware of. The Mental Capacity Act is central to DoLs and LPS and is intrinsically linked to both. Again, an industry-leading content provider such as QCS can isolate a bespoke set of curated policies and procedures that each individual staff member will need. This approach ensures that, as well as providing each care worker with a holistic understanding of LPS, each one is equipped to recognise and know what to do when faced with any aspect as to when a person’s liberty is being restricted.
Co-production around LPS can prove invaluable
I also think that co-production is key. Care services should use the time they have between now and when the LPS ‘go live’, which the Government still state will be April 2022, to proactively collaborate with other providers and partner agencies, such as the local authorities, to understand the local picture, to share concerns and to raise them. On this point, it is not too late. There will be one last consultation and, when it is published, it will provide services with a final opportunity to share views and potentially influence the final LPS process. Concerns raised in any consultation by organisations that have worked together and understand the challenges, bottlenecks and impracticalities of the proposed LPS system are much more likely to be acted upon than concerns from individual providers who haven’t taken the time to gauge the wider impact of LPS on their service.
Finally, there is a large number of questions that remain unanswered and the phrase ‘the devil is in the detail’ has never been more appropriate. It is hoped that the upcoming consultation will clarify a lot of questions, but I am sure it will pose more questions than answers. Any change brings about uncertainty and the Government has recognised this. Even when the LPS ‘go live’ there will be a transitional period and existing DoLS will continue to be valid until they are due for renewal. But there are also questions about resources, training and ensuring people are aware of what they need to do. Uncertainty around the number of IMCAs that might be needed, the role of the ‘appropriate person’ and the scope of the work of the Approved Mental Capacity Professional (AMCP) have also surfaced.
For a new code of practice that seeks to put the person at the centre of the process, it would be ironic if those responsible for implementing it feel distanced from the legislation. To avoid this being the case, the Code of Practice needs to ‘put more leaves on the trees’. Failure to do so may prevent the foundation seeds of LPS from flowering.
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Ed Watkinson, Residential Care and Inspection Specialist
Ed has wide experience across a variety of roles in the care sector. He has been a care assistant, registered manager, area manager, care manager and senior commissioner. He has also served as a Planning and Commissioning Manager for Buckinghamshire County Council and as Methodology Developer and Regulatory Inspector for the Commission for Social Care Inspection. Most recently, he has worked as a Regulation Manager for Barchester Healthcare.
In addition, Ed was on secondment with the Care Quality Commission during 2014 and was central to the development, piloting and roll out of the Care Quality Commission’s new inspection methodology as part of their Policy Team.