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. DoLS applications in England, 2013-18 • 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 overwhelmed. 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 Backlog numbers 2013-2017 matter of “pressing urgency”, as did the MCA post -implementation review report and JCHR in their 2 reports last year. “ 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 House of Lords protection of the law, and therefore without the safeguards which Parliament intended. Worse still, far from Mental Capacity being used to protect individuals and their rights, they are sometimes used to oppress individuals, and to force Act 2005 upon them decisions made by others without reference to the wishes and feelings of the person concerned. ” Committee (2013) 2
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). • 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. 3
How the Liberty Protection Safeguards (LPS) will work The new system is designed to be simpler and more streamlined than DoLS Three assessments Responsible Body (from past care In a care home planning and care Not authorised: setting, this could assessments can be arrangements need be the care home Local authority / to change used ) manager instead, if CCG / appropriate Local Health Board Mental health NHS Trust assessment Authorised . Up to one year, can be renewed If not, Independent pre- for up to one Independent authorisation year and then up Necessary and A deprivation Is there an Mental review arranged to three years Proposed The responsible proportionate of liberty is appropriate Capacity No objection by responsible after that. Can Arrangements body arranges assessment required for person Advocate body (all include (written Liberty (including finding the purpose available to appointed to applications). conditions. statement in Protection out wishes and of a person’s represent and support - unless Can make further care home) Safeguards feelings) care or support person? not having one enquiries if treatment. is in their best required Referred to Objection raised interests. Approved by anyone with Mental interest (e.g. Mental capacity Capacity person, family, assessment Professional carer for review Consultation with everyone interested in the person’s welfare, and the Assessments conducted person themselves, is ongoing. Undertaken by someone on behalf of the by someone with appropriate experience responsible body, or the care home manager. If objection remains after Approved and knowledge. Mental Capacity Professional review, can raise challenge to Court of Protection
Summary of key differences DoLS v LPS 5
Roles in the LPS Builds on DoLS role of BIA and pre-existing authorisation process 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, occupational 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 6
Next Steps 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 operation 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 7
Implementation- how you can help The Department will want to work closely with the sector so it is well prepared for commencement • 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? 8
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