The failings of the Deprivation of Liberty Safeguards (DoLS) have been well documented, with the pressures on local authorities following the Cheshire West judgment of 2014 proving insurmountable.
In recent years, the Law Commission work led by Tim Spencer-Lane resulted in recommendations that were the catalyst for the introduction of the Mental Capacity (Amendment) Bill in parliament in the summer of 2018. Some of the Law Commission’s recommendations were omitted, others revisited and there was much debate over significant issues, such as whether to – and, if so, how to – define what amounts to a ‘deprivation of liberty’. The progress of the bill met with significant lobbying from interest groups and stakeholders that succeeded in changing the course of the debate on a range of issues.
Ultimately, although the bill has changed much since introduction, many charities and care organisations remain concerned. They cite the limitations on the scope of the new safeguards and question how the new scheme will be properly administered without clear proposals from Government on funding. Local authorities will also bear the brunt of the workload despite many already being in dire straits financially.
With the pressure on parliamentary time squeezed by Brexit, it was remarkable that the bill made it through and on to the statute book, roughly as scheduled. The bill received Royal Assent in May 2019, becoming the Mental Capacity (Amendment) Act 2019 (the 2019 Act).
Mental Capacity (Amendment) Act 2019
With just six sections, the 2019 Act is relatively small, with the meat of the new safeguards scheme being contained in Schedule 1, which will be inserted into the Mental Capacity Act 2005 (the 2005 Act) as new Schedule AA1. Being an amendment act, many of the provisions are technical in nature, to ensure that they fit precisely within the 2005 Act with clarity and certainty.
The 2019 Act repeals DoLS as provided for in the 2005 Act. The new Liberty Protection Safeguards (LPS) scheme takes its place, with Schedule AA1 of the 2005 Act:
- Specifying the ‘arrangements’ that can be provided for.
- Providing legal definitions for a long list of terms used, including ‘care home’, ‘responsible body’ and ‘Approved Mental Capacity Professional” (AMCP)’.
- Laying out the process for authorising arrangements, from the ‘conditions’ to be met, to the ‘statements’ to be provided, the ‘determinations’ to be made, the ‘consultations’ required, the carrying out of the ‘pre-authorisation review’ and what constitutes an ‘authorisation record’
- Providing for the:
- Duration, renewal, variation and review of authorisation.
- Approval of AMCPs.
- Appointment of Independent Mental Capacity Advocates (IMCA).
Through the processes established in Schedule AA1, the new LPS scheme provides safeguards and a process for authorising arrangements that would amount to an Article 5(1) deprivation of liberty under the European Convention on Human Rights. The focus of the arrangements is on facilitating the provision of care and treatment in relation to a person who lacks capacity to consent to those arrangements.
The authorisation conditions, laid out in paragraph 13 of schedule AA1, are met if:
- The cared-for person lacks capacity to consent to the arrangements.
- The cared-for person has a mental disorder (as defined in section 1(2) of the Mental Health Act 1983).
- The arrangements are necessary to prevent harm to the cared-for person and proportionate in relation to the likelihood and seriousness of harm to the cared-for person.
All three of these must be met.
LPS in care homes
For care homes, changes to the bill during parliament mean that the “responsible body” is the responsible local authority in England, or the local health board in Wales.
During the passage of the bill, care home providers, residents, families and charities raised concerns over the prospect of care home managers being responsible for the authorisation process. Questions were raised over whether care homes have the resources and expertise to manage the process and stakeholders were worried about potential conflicts of interest. Would the need for providers to maximise occupancy undermine the requirement to be independent and objective in conducting the authorisation process?
The 2009 Act therefore permits the responsible local authority or local health board to decide whether it will manage the authorisation process itself or whether the relevant care home manager should do so.
That said, in view of the widespread concerns expressed, it is unlikely that many care home providers would be prepared to take on the burden of managing the process while at the same time risking criticism from residents and relatives over their potential lack of impartiality.
Responsible body process
If the local authority or local health board decides to retain responsibility in relation to care home arrangements (and in all other cases where they are the responsible body) the process will be as follows:
- Capacity assessment: arrange for, or rely on a previous, assessment of capacity to consent.
- Medical assessment: arrange for, or rely on a previous, assessment as to whether the person has a mental disorder.
- Consultation: consult with relevant parties to understand the person’s wishes (these may be the cared-for person, any person nominated as someone to be consulted, a carer, a Court of Protection deputy, a donee under a power of attorney, an independent mental capacity advocate or any other appropriate person).
- Independent Mental Capacity Advocate/appropriate person: ensure that the duty to appoint an IMCA or appropriate person has been considered and, if applicable, an appointment has been made.
- Pre-authorisation review: arrange for either an approved mental capacity professional (AMCP) or any other authorised professional to complete the relevant pre-authorisation review. An AMCP rather than another authorised professional must conduct the review if it is believed that the person objects to the arrangements, the arrangements involve care or treatment mainly in an independent hospital or the responsible body makes a specific request of the AMCP. In other cases, any other authorised professional may conduct the review. Statutory guidance, likely to be contained in the proposed code of practice, will specify which other professionals are authorised to conduct the review. It should be noted that the pre-authorisation requirements on an AMCP are different in scope from those on any other authorised professional.
Care home manager process
If the care home manager carries out the role, they must do the following:
- Statement to the responsible body: provide a statement to the responsible authority confirming the following matters, as laid out in paragraph 20 of Schedule AA1:
- That the cared-for person is aged 18 or over.
- That the arrangements give rise to a deprivation of the cared-for person’s liberty.
- That the arrangements are not mental health arrangements.
- That the authorisation conditions are met.
- That the care home manager has carried out the necessary consultation.
- That the care home manager is satisfied as to specified consideration concerning whether the person objects to the arrangements.
- Record of the assessments: provide with the statement a record of the assessments that prove the authorisation conditions are met.
- Evidence of the consultation: provide with the statements evidence of the consultations made.
- Draft authorisation: provide a draft authorisation record in the specified format.
The care home manager is required to provide the above information to the local authority or local health board, which would then consider this information when deciding whether to authorise the arrangements. In making this decision, it will also look at other relevant information, for example the pre-authorisation review.
Implementation of Mental Capacity (Amendment) Act 2019
Other key elements of the 2019 Act include:
- An extension to the scope of arrangements that can be authorised.
- A lack of statutory definition of what a ‘deprivation of liberty’ is, so the current ‘acid test’ definition used in the Supreme Court decision in Cheshire West continues to apply.
- The safeguards are extended to 16 and 17 year olds.
- The Approved Mental Capacity Professional role builds on that of the current best interest assessors.
- Review and renewals – the LPS last initially for a maximum of one year; they can then be renewed for a further year and thereafter for up to three years.
The provisions of the 2019 Act have not yet been brought into force but it is expected that Government will pass regulations bringing it into force in Spring 2020.
Under section 4 of the 2019 Act, the Department of Health and Social Care must provide guidance in the Code of Practice to the 2005 Act on ‘what kinds of arrangements for enabling the care or treatment of a person’ amount to a deprivation of liberty for the purposes of LPS.
The Code of Practice will need to be widely revised which will take some time and so is unlikely to be published before early 2020.
For now, it’s important to take necessary steps to prepare your business for the implementation next year. You could start to:
- Familiarise staff with the new LPS framework, the new terms that will be used and the revised scope.
- Look out for the Government’s consultation on the revised Code of Practice.
- Take advantage of staff training courses on the new scheme and book places in advance over the next 6 to 12 months.
DoLS will run alongside the new LPS for one year to give providers and responsible bodies time to make the necessary practical arrangements.
Errol Archer is a Consultant Solicitor Advocate at Scott Moncrieff & Associates Ltd.
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