Adult Social Care Systems – A Changing Landscape
Article 4 – Liberty Protection Safeguards
There has been a view that the ongoing travails of Brexit are taking up the political bandwidth of the government leaving little time, energy and enthusiasm for the other urgent issues that face the country. Previous articles have looked at these challenges but here we will focus on one reform that has successfully navigated Westminster.
The Deprivation of Liberty Safeguards (almost universally known as ‘DoLS’) is a scheme to authorise the detention of those who lack the capacity to consent to their care and the restrictions created to protect them as part of that care. The scheme sits in the cumbersomely named Schedule A1 of the Mental Capacity Act 2005 and it has been the subject of sustained criticism with the House of Lords Select Committee calling it 'not fit for purpose' in 2014.
As a result, the government will replace DoLS with the Liberty Protection Safeguards (inevitably to be known as ‘LPS’). The Act to do this received Royal Assent on 16 May and will amend the Mental Capacity Act 2005 and include the helpfully titled Schedule AA1.
This article will highlight a few of the more interesting issues and changes that will affect local authorities, hospitals, Clinical Commissioning Groups (‘CCGs’) and over 200,000 adults a year.
Responsible bodies able to authorise a Liberty Protection Safeguard will be local authorities, hospital managers and CCGs, depending on who is providing care to the adult.
This represents a new burden on the NHS bodies, who do not have this role under DoLS. It is not yet known what, if any, new funds will accompany this new role.
There is no definition of a deprivation of liberty and when the LPS should be used. One of the recommendations of the Independent Review of the Mental Health Act was to have a clear definition to avoid the current grey area between whether an adult should be detained under the Mental Health Act or the Mental Capacity Act.
Further, there was a very brief government consultation on a definition to limit the scope of LPS to reduce the amount of adults who would fall under it. This was not pursued.
The LPS can authorise a deprivation of liberty in any setting, removing the arbitrary DoLS limitation to hospitals and care homes. This will avoid the need to make an annual application to the Court of Protection for each adult who is subject to a deprivation of liberty outside of these two settings (a requirement that is not always followed due to lack of resources, leading to legal risk).
Care home managers take on a potential significant new role involving the lion’s share of the authorisation work for an adult in their care home to determine if the arrangements are necessary and proportionate. This presents a clear risk of conflict of interest because the purpose of the LPS is to protect the adult’s liberty and having a system where the people implementing the restrictions can largely approve them (subject to some oversight from the responsible body). The recent scandal at Whorlton Hall uncovered by the BBC highlights this.
This is only an optional scheme and it will be for the responsible body to decide whether to implement it. The immediate attractions of the scheme for a cash strapped responsible body will be that they can delegate a significant amount of work. It is worth noting that the legal responsibility remains with the responsible body not the care home manager.
It is surprising that the government estimated that half a day of training would be sufficient for care home managers to carry out this role. Certainly, the providers themselves are concerned that they do not have the skills or resources (including time). It is unclear who would pay for the care home managers to do this but we would anticipate for it to be commissioned by the responsible body.
The strident views of Baroness Murphy in the House of Lords (which is where the Bill was introduced) who described the Bill as a are a reminder that in all likelihood, this Act will not reduce the amount of people subject to LPS meaning that those adults who need careful attention may be lost in an overstretched bureaucratic process.
There will be a lot of focus on the new Code of Practice that will accompany this. Many questions are left unanswered, so the Code will have a lot of heavy lifting to do.
These are just a few points of interest that arise from the new Act and we will return to it in future articles. There is no word yet on when it will come into force, but we would expect that it could begin to be introduced as early as 2020.
The wider landscape
The focus of these articles is how one part of the system affects another and to link often fragmented reforms. As we keep returning to, it is the same adult who may experience social care, healthcare, mental healthcare and deprivation of liberty.
The success or otherwise of the NHS Long Term Plan will be dependent on the other elements of the adult social care system working effectively.
We are still awaiting the oft-promised proposals on funding adult social care but the government has confirmed that the cap on care costs is no longer a proposed option meaning that section 15 of the Care Act 2014, which has been on the statute books for over 4 years, will now never come into force.
We are also awaiting the government’s response to the December 2018 Review of the Mental Health Act. In particular, a barrier to the discharge of those in long term mental health units (the Transforming Care programme which has been subject to recent criticism) was identified as the lack of powers in the Act to impose a deprivation of liberty that is less restrictive than that impose in the mental health unit for an adult with capacity. The government indicated in January that they are considering this specific issue but they have yet to confirm their view.
The context is that Mrs May’s focus on improving mental health provision has been somewhat side-tracked by Brexit and now, of course, by her resignation. It is impossible to know what the views of her successor will be or if the same ministers who are overseeing these reforms will remain in post.
How we can help
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Robin Donaldson | Solicitor
Essex Legal Services
T: 03330 139 610