The dedicated social care team at law firm Royds Withy King outlines five key challenges facing the sector in 2020.
While I agree that Learning Disability and Autism training should be mandatory, so should Training on Mental Capacity Act (MCA) and Deprivation of Liberty Safeguards (Dols) and the forthcoming change of Dols to LPS (Liberty Protection Safeguards) effective from October 2020.
However, in this instance, while Learning Disability and Autism was relevant, surely the adherence to the policy on allergies is also relevant as this should be an underling principle for any organisation, especiallywithin health.
Readers, for a few days, I will only be posting links with relevant titles. This is due to not having access to a computer. I will still do my best to bring you content.
The government’s proposed ‘definition’ of a deprivation of liberty has been rejected by the House of Lords, which this week inserted an alternative description into legislation to replace the Deprivation of Liberty Safeguards (DoLS).
Peers overturned the government definition in the Mental Capacity (Amendment) Bill, and instead backed an amendment tabled by Liberal Democrat peer Baroness Tyler to change the definition. The bill would replace DoLS with a new system – the Liberty Protection Safeguards – for authorising deprivations of liberty in health and social care settings.
Read more on the Mental Capacity (Amendment) Bill:
While the government definition, which ministers called a ‘statutory clarification’, set out what a deprivation of liberty was not, Tyler’s defined a deprivation of liberty positively. The two ‘definitions’ are listed below:
Source: Government deprivation of liberty definition rejected by Lords : Community Care
Individuals who may be deprived of their liberty under the Mental Capacity Act (MCA) would not be informed of their rights until the deprivation has been authorised, under government changes to the bill to replace the Deprivation of Liberty Safeguards (DoLS) with the Liberty Protection Safeguards (LPS).
The amendment to the Mental Capacity (Amendment) Bill, which passed narrowly last week by a committee of MPs scrutinising the bill, would see the cared for person, and any appropriate person or independent mental capacity advocate (IMCA) supporting them, given key information regarding the process and the person’s rights as soon as practicable after an authorisation were given.
More on the Mental Capacity (Amendment) Bill:
- Government issues deprivation of liberty definition in bid to provide clarity to practitioners
- Labour bid to scrap DoLS replacement bill fails as legislation passes first Commons stage
This includes the responsible body – the agency which authorises the deprivation of liberty, ensuring the cared-for person, and any IMCA or appropriate person -understand the effect of the authorisation, the circumstances under which an advocate would be appointed and their rights to request a review and to challenge any authorisation in court.
Source: Key change made to rights to information under LPS : Community Care
The bill to replace the Deprivation of Liberty Safeguards (DoLS) with the Liberty Protection Safeguards (LPS) has been approved by the House of Lords after peers made significant changes to the government’s original proposals.
The majority of changes made to the Mental Capacity (Amendment) Act were designed to address concerns that the original bill failed to provide sufficient safeguards for people deprived of their liberty or sufficiently consider the wishes and feelings of people and their families.
With the bill due to have its first debate in the House of Commons tomorrow (18 December), we review the major changes agreed by the Lords.
Reducing role of care home managers
One of the main sticking points of the original proposals was the significant role given to care home managers under LPS in cases in their homes
It was originally proposed that care home managers would be responsible for arranging assessments to decide whether the three conditions for a deprivation of liberty authorisation had been met: that the person lacked capacity to consent to their care arrangements and had a mental disorder, and that the arrangements were necessary and proportionate.
Managers were also tasked with confirming with the responsible body – which in the case of care homes would be the local authority – if the authorisation conditions had been met, if an independent mental capacity advocate (IMCA) should be appointed and if the person were objecting to their care arrangements. This is significant because anyone who objected would be entitled to have their case reviewed by an approved mental capacity professional (AMCP), a practitioner with specialist training in the Mental Capacity Act (MCA) similar to the best interests assessor (BIA) under DoLS.
Concerns over managers’ skills and knowledge
Peers challenged the initial proposals, questioning whether care home managers would have the required skills and knowledge to carry out what would be, in effect, the responsibilities performed under DoLS by BIAs, who have specialist training in the MCA.
They also questioned why these responsibilities would not be carried out by local authorities in their responsible body capacity, as proposed by the Law Commission in its 2017 report on reforming deprivation of liberty law that forms the blueprint for the government’s proposals.
Professionals also expressed significant concern about this aspect of the bill. A survey of over 900 people conducted by Edge Training and Community Care found that 86% of respondents disagreed with proposals to make care home managers responsible for conducting or delegating assessments.
In addition, giving managers the responsibility to alert local authorities if they judged an IMCA was required also worried peers, who warned that care home managers would act as gatekeepers and people entitled to advocates would not have access to them.
Local authorities given a choice
In response to these concerns, the government brought forward amendments to give local authorities the option of giving these responsibilities to the care home manager or undertaking the responsibilities themselves. This would act as a check to ensure that the care home was suitable to oversee the process.
The bill was also changed so that managers would no longer be responsible for notifying a local authority if an IMCA should be appointed.
Instead, the amended bill specifies IMCAs would be automatically appointed where there was no appropriate person – an informal advocate who would represent and support the cared-for person but would not be involved in their care, such as a family member – unless it would not be in the person’s best interest to appoint an IMCA.
Conflict of interest
Another government a
The government has agreed to extend the approved mental capacity professional (AMCP) role to improve safeguards for service users under the scheme that will replace the Deprivation of Liberty Safeguards (DoLS).
In this week’s House of Lords debate on the Mental Capacity (Amendment) Bill, which would introduce the Liberty Protection Safeguards (LPS) to replace DoLS, junior health minister Lord O’Shaughnessy announced the government would amend the legislation in the Commons to extend the range of circumstances in which an AMCP would be required to consider a case.
Function of new AMCP role
AMCPs will be practitioners with specialist training in the Mental Capacity Act – likely to be mostly social workers – whose role will be to provide an independent check, known as a pre-authorisation review, on whether the conditions for a deprivation of liberty under LPS have been met.
These are that the person lacks capacity to consent to the arrangements giving rise to the deprivation of liberty, and has a mental disorder, and that the arrangements are necessary to prevent harm to the person and proportionate to the seriousness and likelihood of that harm.
However, unlike the best interests assessor role under DoLS, an AMCP would not be required in every case. As the bill stands, they would only be required where there is a reasonable belief that the person is objecting to the arrangements.
While the body responsible for authorising the deprivation of liberty could appoint an AMCP in other cases, they would not be required to. Instead, a person independent of the person’s care, but who would not need specialist training or qualifications would carry out the review.
This had sparked concerns among peers and professionals that there would be insufficient protections for people who were not evidently objecting to their arrangements but were otherwise particularly vulnerable.
The government has assured peers that the system to replace the Deprivation of Liberty Safeguards (DoLS) will not reduce access to advocacy for people deprived of their liberty.
Junior health minister Lord O’Shaughnessy told a House of Lords debate on Monday (22 October) that the Liberty Protection Safeguards (LPS) was not written “to restrict people’s access to independent advocacy”.
“It must be the case that anybody who needs support to navigate these difficult and complex situations must be able to find the right support for them,” O’Shaughnessy said in the debate on the Mental Capacity (Amendment) Bill.
More on the DoLS Amendment Bill
- Government to amend deprivation of liberty scheme to cover 16- and 17-year-olds
- Plan to extend care home role in deprivation of liberty cases despite heavy criticism maintained by government
O’Shaughnessy was speaking on the final day of the bill’s committee stage in the House of Lords, during which the legislation, which would introduce the LPS to replace DoLS, was scrutinised in detail. No amendments were passed during the stage, and the bill will now proceed to the report stage, the penultimate phase of its passage through the Lords.
Entitlement to advocacy explained
Under DoLS, the supervisory body – the local authority or Welsh health board overseeing the DoLS process – is under a duty to appoint an independent mental capacity advocate (IMCA) on three separate grounds:
- at the assessment stage, if the care home or hospital (the managing authority) in which the person would be detained is satisfied there is no one independent to consult about their best interests (a section 39A IMCA);
- when a person is under a DoLS authorisation, at any point where they do not have a relevant person’s representative (RPR) to represent them and the managing authority is satisfied there is no one independent to consult about their best interests (a section 39C IMCA);
- when the person under the authorisation or their RPR (if unpaid) requests the appointment of an IMCA or the supervisory body believes it is necessary to appoint one to help the person or the RPR exercise their rights to challenge their authorisation or have it reviewed (section 39D).
In each case, the supervisory body appoints the IMCA, though in the case of a 39A or 39C IMCA, this duty is triggered on the assessment of the care home or hospital in which the person is or may be detained.
Under LPS, the role of the RPR is replaced by that of ‘appropriate person’, who would tend to be a family member or friend who is able to support and represent the person.
Where a person were subject to an LPS authorisation or where this had been proposed, the “responsible body” – the local authority in social care cases, the hospital manager in hospital cases or the clinical commissioning group or Welsh health board in continuing healthcare cases – would have a duty to take all reasonable steps to appoint an IMCA to represent the cared-for person if:
The government will amend its planned replacement to the Deprivation of Liberty Safeguards (DoLS) so that it applies to 16- and 17-year-olds, not just those over 18, a minister has confirmed.
Junior health minister Lord O’Shaughnessy pledged to amend the Mental Capacity (Amendment) Bill so that the proposed Liberty Protection Safeguards applied to young people aged 16 and 17, in a House of Lords debate on the bill yesterday (15 October).
- Government stands by plan to extend care home role in deprivation of liberty cases despite heavy criticism
- Five things you need to know about Liberty Protection Safeguards
- Peers call for significant changes to DoLS replacement scheme to secure rights of service users
The government had been criticised for excluding 16- and 17-year-olds from the scheme, particularly as they had been included in 2017 Law Commission proposals to replace DoLS that form the blueprint for the government’s plans.
Disabled campaigners say the government must delay a controversial bill they believe would make it easier to restrict the freedom of people in care settings who lack capacity to make their own decisions.
Peers yesterday (Wednesday) began debating the committee stage of the mental capacity (amendment) bill, legislation that will affect an estimated 300,000 people in England and Wales with impairments including dementia, learning difficulties and brain injuries.
The bill would introduce a new system, Liberty Protection Safeguards (LPS), to replace the crisis-ridden Deprivation of Liberty Safeguards (DoLS), for service-users who need to be deprived of their liberty as part of their care but are considered to lack the mental capacity to consent to those arrangements.
The bill is based on recommendations made by the Law Commission but critics say it is “significantly different” from the commission’s own draft bill and omits most of its most progressive elements.
Inclusion London believes the bill as it stands breaches four articles of the UN Convention on the Rights of Persons with Disabilities (on equal recognition before the law, on liberty and security of the person, on protecting the integrity of the person, and on independent living) and says it is “seriously concerned about the impact this bill will have on the human rights of disabled people”.
It says the bill will “significantly weaken the few existing protections” disabled people currently have and has called for its progress through parliament to be paused to allow people who would be affected by the proposals to respond to the government’s plans.
But it will also be working with other disabled people’s organisations, lawyers and academics to secure amendments to the bill.
One in five social care complaints made to the ombudsman last year involved concerns about the Mental Capacity Act or DoLS