The Mental Capacity (Amendment) Bill 2018 (the Bill) is before Parliament. If it is passed it will result in very significant changes for the independent social care sector and will place a much greater administrative and financial burden on them than the current DoLS scheme. Care home managers will have important new responsibilities for arranging consultations and assessments.
It is expected that the House of Lords will finish considering the Bill by the end of this year and that it will be considered by the House of Commons in early 2019. The Bill completed the report stage in the House of Lords on 27 November 2018 and some further Government amendments were incorporated into the Bill.
There will be no more DoLS – these will be replaced by “Liberty Protection Safeguards” (LPS).
One key difference to the proposed LPS scheme is that unlike DoLS, a new authorisation will not be required for every setting that an individual goes to. As long as there is an authorisation in place for an individual creating an authorisation record, this authorisation record will travel with them as they move between different settings. So if a person is moving between a care home and hospital, the authorisation could move with them even if the circumstances of the deprivation of liberty were seemingly very different. This is likely to significantly reduce the administrative burden of authorisations under the LPS.
A second key difference is that the responsible body for authorising deprivation of liberty will not always be the local authority. Instead, if a person is residing in a hospital, the responsible body will be the hospital managers; if a person is in receipt of continuing healthcare funding, the responsible body will be the relevant Clinical Commissioning Group. In all other cases, it will be the local authority.
Statements by Care Home Managers
Where the arrangements will be carried out in a care home a statement must be made by the care home manager to the responsible body containing certain information including:
- the proposed arrangements amount to a deprivation of liberty and the reasons for the detention;
- the individual has been determined to lack capacity and is of unsound mind; and
- the arrangements are necessary and proportionate.
The care home manager will have to provide evidence of these matters to the responsible body. It is likely that many care home managers will require specific training as they may not have the necessary experience and knowledge to make these types of determinations and organise the required assessments.
It will be for the care home manager to satisfy themselves that the arrangements are necessary and proportionate. No guidance is given within the Bill as to the definition of necessary and proportionate, nor how this should be assessed.
The amendments permit a care home manager to rely on an old assessment even if it was prepared for another purpose provided it is “reasonable” to do so. Therefore there is an element of discretion for care home managers in deciding if this is reasonable, although there are factors to be specifically considered, the most obvious of which is has there been a change that would affect the conclusions reached in the assessment.
The care home manager will also have responsibilities for arranging the appropriate consultation about the proposed arrangements, with a view to determining P’s wishes and feelings. This includes a duty to consult with any person that P wants to be consulted, carers, persons interested in P’s care and any deputy or Attorney and any IMCA or appropriate person. Following the Government amendments at the Report Stage P has been included in the list of people who must be consulted. The extent of the consultation will depend on what is practical and appropriate in the particular circumstances of each case.
At present the Government has allowed for half a day's training for care home managers on their new responsibilities.
It had previously been the intention that care home managers would be the “gatekeepers” to IMCAs. It was confirmed following the Report stage of the bill that an IMCA will be appointed unless it would not be in someone’s best interests.
Care Home Renewals
In the case of individuals in care homes, it appears that the responsibility for renewing the LPS also rests with the care home manager. Unlike DoLS standard authorisations, which expire after 12 months, authorisations under the LPS can be renewed for 12 months in the first instance and then for a period of up to 3 years where someone’s circumstances are unlikely to change and they are stable.
For more detailed information about the new LPS regime see also The DoLS Replacement Bill: A Quick Guide.