Mental Capacity (Amendment) Act The Liberty Protection Safeguards - - PowerPoint PPT Presentation

Mental Capacity (Amendment) Act

The Liberty Protection Safeguards Ed Moses

1 May 2019

The case for change: numbers have grown, and the backlog

The DoLS have been subject to criticism since their inception in 2009. A 2014 Supreme Court ruling (Cheshire West) significantly widened the definition, overwhelming the current system.

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• Following the Cheshire West case, the Government asked the Law Commission to review the

existing arrangements. Three tests were set for any new system:

• Does it realise real benefits for the person who may lack capacity and their family?
• Does it represent a good use of public funding?
• Does it make it easier for individual and/or their family to engage with the scheme?
• The Law Commission found the current system didn’t offer necessary protection and was
• verwhelmed. There were too many examples of poor implementation.
• Its impact assessment estimated the cost of full compliance with the DoLS regime following

Cheshire West would be £2.2 billion per year.

• The Commission’s final report, which included a draft Bill, called for DoLS to be replaced as

matter of “pressing urgency”, as did the MCA post-implementation review report and JCHR in their 2 reports last year.

DoLS applications in England, 2013-18 Backlog numbers 2013-2017

“The provisions are poorly drafted, overly complex and bear no relationship to the language and ethos of the Mental Capacity Act. The safeguards are not well understood and are poorly implemented. Evidence suggested that thousands, if not tens of thousands, of individuals are being deprived of their liberty without the protection of the law, and therefore without the safeguards which Parliament intended. Worse still, far from being used to protect individuals and their rights, they are sometimes used to oppress individuals, and to force upon them decisions made by others without reference to the wishes and feelings of the person concerned.”

House of Lords Mental Capacity Act 2005 Committee (2013)

The Mental Capacity (Amendment) Bill

The Mental Capacity (Amendment) Bill amends the Mental Capacity Act 2005 and replaces the DoLS with the Liberty Protection Safeguards (LPS).

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• The measures set out in the Bill are intended to ensure the process is (1) more streamlined, (2)

more person-centric and (3) less bureaucratic and costly than DoLS. Key features:

• Reducing the existing six assessments to three: a capacity assessment, a medical

assessment, and a ‘necessary and proportionate’ assessment. These may be embedded into existing care planning

• NHS organisations also to be Responsible Bodies, hospital cases and CCGs for some

community cases

• Providing an option to extend the period to be renewed for individuals with long term stable

conditions from one year to up to three years

• Ensuring people are supported throughout the process by an ‘appropriate person’. If no

such person is available, an Independent Mental Capacity Advocate appointed.

• Explicit duty to consult with carers and families.
• Where a person objects, an independent Approved Mental Capacity Professional will

review proposed arrangements.

• Extending the application beyond hospitals and care homes to wider range of settings and

ages, including 16-17 year olds.

Three assessments (from past care planning and care assessments can be used)

How the Liberty Protection Safeguards (LPS) will work

Independent pre- authorisation review arranged by responsible body (all applications). Can make further enquiries if required Objection raised by anyone with interest (e.g. person, family, carer Referred to Approved Mental Capacity Professional for review Proposed Arrangements (written statement in care home) Local authority / CCG / Local Health Board NHS Trust Is there an appropriate person available to represent and support person? Not authorised: arrangements need to change A deprivation

• f liberty is

required for the purpose

• f a person’s

care or treatment. The responsible body arranges Liberty Protection Safeguards If not, Independent Mental Capacity Advocate appointed to support - unless not having one is in their best interests.

Consultation with everyone interested in the person’s welfare, and the person themselves, is ongoing. Undertaken by someone on behalf of the responsible body, or the care home manager. Assessments conducted by someone with appropriate experience and knowledge.

Authorised. Up to one year, can be renewed for up to one year and then up to three years after that. Can include conditions. Necessary and proportionate assessment (including finding

• ut wishes and

feelings)

In a care home setting, this could be the care home manager instead, if appropriate

Responsible Body

Mental health assessment Mental capacity assessment No objection

The new system is designed to be simpler and more streamlined than DoLS

If objection remains after Approved Mental Capacity Professional review, can raise challenge to Court of Protection

Summary of key differences DoLS v LPS

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Roles in the LPS

Builds on DoLS role of BIA and pre-existing authorisation process

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Approved Mental Capacity Professional

• Completes pre-authorisation review where an objection has been raised, in independent hospital cases or other

relevant cases as set out in the Code of Practice. Will meet with person, complete consultation and look at information relied upon for assessments

• Government will set out in regulations who can complete this role but will be professionals such as first tier nurses,
• ccupational therapists and social workers, builds on BIA role

Pre-authorisation reviewer

• Completes pre-authorisation review in other cases. Will use information available to authorise. Can request further

information or meeting with person as necessary

• We expect this to be done by competent staff, including professionals such as nurses or senior social worker
• ‘Sign off’ by Responsible Body as is the case by (supervising body with DoLS authorisations)

Assessor

• Completes the assessments required for a Liberty Protection Safeguards authorisation
• Government will set out in regulations who can complete this role but will be professionals such as doctors, first tier

nurses, occupational therapists and social workers

Next Steps

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Code of Practice

• LPS Code currently in production, being co-produced with

sector including NHS, ADASS leading this work

• Will provide in depth detail for practitioners to inform the
• peration of the new system
• Full public consultation ahead of implementation
• Wider MCA Code also being updated by MoJ

Training and support

• Working with HEE, Skills for Care and others to develop

training- workforce development Model

• Briefing to Trusts and CCGs

Transition

• “Grandfathering” existing DoLS authorisations
• Guidance documents to support change of responsible bodies

and new role for NHS

Implementation- how you can help

The Department will want to work closely with the sector so it is well prepared for commencement

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• What do you need, what do you want from DHSC?
• What are the key issues the Dept must consider as it works on implementation planning?

➢ Handling the backlog? ➢ Workforce issues? ➢ Transition?

• Timings? When should LPS commence?
• What will LAs need from ADASS?