Deprivation of Liberties: when will we get it right? As published in Caring Times – November 2018

Topics covered: Amina Uddin, Caring Times, deprivation of liberty, DoLS, mental capacity

Promoting and safeguarding a person’s autonomy is a fundamental right, which is entrenched in national/international legal systems. Therefore, to infringe on such rights it is imperative that great consideration and thought is given to developing legislation which protect such rights.

The Mental Capacity (Amendment) Bill (“Proposed Bill”), will replace the Deprivation of Liberty Safeguards (“DoLS”) in the Mental Capacity Act 2005. The bill as it currently stands would introduce an amended version of the Liberty Protection Safeguards (“LPS”) proposed by the Law Commission. However, upon reviewing the Proposed Bill, it seems like it has missed in creating a robust regime, which will protect people’s rights.

Of alarming concern is the proposal for placing responsibility on care home manager’s in making arrangements for depriving someone of their liberties. The Proposed Bill states that where there is a potential DoLS in a care home, it should be the responsibility of the care home manager to carry out relevant assessments, consultations, reviews and renewals for authorisation of care and treatment measures that may deprive people of their liberty and put forward their findings to the local authority as the ‘responsible body’. This particular aspect of the Proposed Bill has generated many concerns. Understandably so. There are many unanswered questions and many things that could potentially go wrong with the new DoLS regime, which may put people and care providers at grave risk. Furthermore, such a regime will mean that there is insufficient independent scrutiny of the proposed care arrangements.

Ministers have highlighted that one of the reasons for this to be included in the Proposed Bill was to try to achieve the consideration of DoLS at the earliest possible point in the care planning stage; the care home manager will essentially be responsible for organising arrangements, but not the delivery of care. One would assume that such a task would require additional training, yet the government has estimated to cost to be £0 to care providers. This assumption is based on the fact that the care manager should have the necessary skills to carry this out already as they have previously dealt with LPS’s predecessor, the DoLS. The government has stated that care managers would require half a days’ worth of training to ensure that they are familiar with the new policy. It is unrealistic to expect care managers to fully understand and implement the new system in such a short period of time, especially when such training concerns an area of law which is known to be very complex. Best Interests Assessors and DoLS medical assessors all have extra training on top of their existing qualifications and experience; they all have mandatory refresher training on an annual basis. Also, it is common knowledge that staff retention within the care sector is low.

This proposal is particularly worrying considering that the care sector is already under a significant amount of financial pressure; adding such pressure will further strain the resources in the sector.

Of further concern is the potential likelihood of conflicts of interest caused by placing assessment responsibilities on care home managers. The proposed responsibilities will include identifying objections of any proposed deprivation of liberties, arranging assessments, making a decision as to whether an appropriate person and/or an advocate (IMCA) needs to be appointed, as well as deciding who should act as the appropriate person for people who do not have the mental capacity to make decisions. In other words, the care manager is essentially deciding whether to deprive a person of their liberties, whilst also determining whether the placement is right for the person and whether any objections have been made by the person regarding the placement. This type of conflict may put the care managers integrity at risk, as they may face working in a regime which puts them in a catch 22 situation.

The Proposed Bill is troublesome to say the least. It fails to identify the strain this new regime will put on care managers and the care sector in general. Above all else, the Proposed Bill does not protect the rights of a person, as having care managers complete assessments and make decisions in relation to deprivations of a person’s liberty creates a conflict of interest. The parliamentary process of approving the Proposed Bill is still in progress, so there is hope yet. However, if the Proposed Bill succeeds in replacing the current DoLS regime, then it is unfortunately, a missed opportunity.

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