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The Deprivation of Liberty Safeguards are on the way out. What is to replace them?

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Introduction

There is general agreement that the Deprivation of Liberty Safeguards (DoLS) are a bureaucratic nightmare that in most cases adds very Psychotherapylittle, if anything, to the quality of life of the individuals concerned.  The President of the Court of Protection described the experience of writing a judgment in a case involving DoLs as feeling ‘as if you have been in a washing machine and spin dryer.’ There is also a backlog of cases in the region of 125,000 with many going back several years.

The Government has decided to replace DoLS with a new framework which will be called the Liberty Protection Safeguards (LPSs). These will not just apply to care homes and hospitals, which is the current position with DoLS, but to wider settings including supported living and people’s own homes.  Instead of the current six assessments carried out under DoLS there will be three under the LPSs – mental disorder, mental capacity and a ‘necessary and proportionate’ assessment in relation to the proposed arrangements. It is assumed that most cases are straightforward and will be approved by the ‘responsible body’ – in social care this will be the local authority – with a smaller number of more complex cases going to an Approved Mental Capacity Professional for a decision, a new role that many Best Interests Assessors will no doubt apply for given their current role is to be abolished.

To bring about the change, the Government introduced a Bill before Parliament in July 2018 – the Mental Capacity Act (Amendment) Bill – which has now passed through the Lords and Commons and is awaiting Royal Assent to become an Act of Parliament. It has had a difficult passage through Parliament with many objections being raised about a perceived watering down of protections for cared-for people.

Another area of controversy has been in relation to new responsibilities placed on care home managers to undertake the assessments. Concerns have been raised about conflicts of interest, as well as the practicality of requiring already stretched care home managers to undertake these additional responsibilities. The Government has had to back down in the face of widespread opposition so that now care home managers and their staff will not be the ones undertaking the assessments. It is now proposed that assessments of mental disorder and mental capacity will normally be arranged through a person’s GP, while in most social care cases the local authority will be responsible for organising the ‘necessary and proportionate’ assessment. In relation to local authority funded cases the ‘necessary and proportionate assessment will normally be done by a social worker in parallel with the Care Act assessment; in relation to self-funders, there will be the need for separate ‘necessary and proportionate’ assessments to be undertaken by the local authority.

Care home managers will still need to collate all the assessments into a statement to be supplied to the local authority and they will also be responsible for consulting with interested persons about the proposed arrangements, including the cared-for person.

In relation to supported living and domestic settings, the local authority will have the full responsibility for organising the assessments and consulting with interested persons, including the cared for person.

Even though the Government has made a number of significant changes to the original proposals, the Bill remains deeply unpopular within the sector. On 8 February, over 100 organisations across the sector wrote an open letter to the Minister for Social Care asking for the Bill to be paused to allow for proper consultation on the changes, something that didn’t happen prior to the Bill being introduced before Parliament. The Government, however, is intent on pressing forward with the legislation.

Even after the Bill becomes an Act, there will be a period of time needed to prepare the sector for the changes. Importantly, the Government has not yet issued a draft Code of Practice. This is not expected much before the autumn. The Code will provide guidance on how the legislation should be applied to the various settings, with clarification as to what may constitute a deprivation of liberty. The Government must consult with the public on the draft Code and it will require the approval of Parliament.

Finally, there is the major issue of training across the sector. The Government has given a commitment to support the care sector with training ahead of the new system coming into force. However, the latest Regulatory Impact assessment provides no budget for this training which is worrying.  It focuses on training for Approved Mental Capacity Professionals, doctors and social workers. It is difficult to see the Act coming into force much before April 2020 and possibly not until 2021.

Neil Grant

Partner

Gordons Partnership LLP

15 February 2019

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