In due course, the Liberty Protection Safeguards (“LPS”), introduced under Schedule 1 to the Mental Capacity (Amendment) Act 2019 (“MC(A)A 2019”) will replace the current Deprivation of Liberty Safeguards (“DoLS”) set out in the Mental Capacity Act 2005. However, before this happens there are a few hurdles to cross, as detailed below.
On 10 March 2022, the Department of Health and Social Care (“DHSC”) announced that it expects to launch the public consultation on draft combined Code of Practice on the Mental Capacity Act 2005 (“MCA 2005”) and the LPS, “very soon”. The DHSC confirmed that the consultation will run for 16 weeks and that it has, decided to extend the consultation from 12 weeks to take account of local government elections taking place in May 2022. Ridouts would encourage all providers to get involved in the consultation and share their views.
Alongside the public consultation, the DHSC will also publish the draft regulations which will underpin the LPS. Although it is not required to consult on the regulations, the DHSC has decided to publish the draft regulations in order to seek views on the policy detail of each set of regulations.
Once the public consultation has taken place, the DHSC will need to consider the responses which will take time and as a result, it is hard to envisage that the LPS will come into force this year.
What does this mean for providers?
Whilst we wait for the LPS to be implemented, the principles of the MCA 2005 and the safeguards provided by DoLS still apply.
Under the MCA 2005, mental capacity means being able to understand, weigh up and retain information in relation to a specific decision at the time it needs to be made and the ability to communicate that decision. Good use of the MCA 2005 can help providers support people using services around areas of consent, decision-making and in upholding human rights.
A person can only be deprived of their liberty where it is shown to be in their ‘best interests’ to protect them from harm, a proportionate response to the likelihood and seriousness of that harm and if there is no less restrictive alternative available.
In order to reduce the risk of people being deprived of their liberty without the proper authorisation, providers should continue to do the following:
- Adhere to the DoLS Code of Practice which sets out guidance for care homes in relation to how to avoid unlawfully depriving someone of their liberty and how to act in a person’s best interests. Anyone with responsibility for applying DoLS must have regard to the Code of Practice, which supplements the provisions of the MCA 2005 Code of Practice.
- Ensure that staff are fully trained in relation to DoLS.
- Make the necessary DoLS applications to local authorities.
- Ensure that DoLS assessments are up to date. DoLS authorisations must be removed when they are no longer necessary. The duration specified in a DoLS authorisation is the maximum time allowed without further authorisation.
- Follow up on any applications that remain outstanding and ensure that this is evidenced in a record. For example, the information could be recorded in a ‘DoLS tracker’ spreadsheet. This is a useful record to show to the CQC during inspections.
- Notify the CQC about the outcome of a DoLS application once known.
Deprivation of liberty and the CQC
In the CQC’s annual state of care report titled, ‘The state of health care and adult social care in England 2020/21’ (published in October 2021), the CQC raised concerns about delays in authorisations, “…which mean that individuals are deprived of their liberty longer than necessary, or without the appropriate legal authority and safeguards in place.”
Concerns raised by the CQC around DoLS in the state of care report were as follows:
- Variation in knowledge and understanding of DoLS legislation and in the quality of training
- Poor quality mental capacity assessments and best interest decision making
- Delays and backlogs at a local authority level and providers not effectively escalating applications when needed.
The CQC takes compliance with DoLS and the MCA 2005 very seriously. If there is any doubt about whether a person is being deprived of their liberty, providers should err on the side of caution and make a DoLS application to the local authority for a standard authorisation. Providers are required to notify the CQC without delay when the outcome of an application for a DoLS authorisation is known, including when authorisation has not been granted.
If a deprivation is unlawful it can lead to the CQC taking enforcement action or potential claims for compensation. Unlawful deprivation of liberty is also a safeguarding issue and can lead to local authorities taking action against providers, such as placing an embargo on a service.
Providers will have further clarification as to how the MC(A)A 2019 will work in practice once the Regulations and Code of Practice have been drafted. Providers are encouraged to contribute and get involved with the public consultation once it is launched.
In the meantime, providers will need to continue using the existing DoLS framework to ensure that appropriate authorisations are in place.
If providers need any advice or assistance in relation to issues arising from the current DoLS system or the LPS our specialist solicitors can help. Please contact Ridouts Professional Services Ltd using the email address firstname.lastname@example.org or by calling 0207 317 0340.