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.
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Source: Lords approves DoLS replacement bill following significant changes to boost safeguards for those detained | Community Care