On 16 July 2020, the Government announced that the Liberty Protection Safeguards (“LPS”) which were due to be implemented on 1 October 2020 would be delayed until April 2022. The Mental Capacity (Amendment) Act 2019 (“MC(A)A 2019”), introduced the LPS to replace the Deprivation of Liberty Safeguards (“DoLS”). The LPS will authorise deprivation of liberty in order to provide care or treatment to an individual who lacks capacity to consent to their arrangements, in England and Wales.
The LPS Care Home Manager role
In an LPS Steering Group meeting which took place on 13 October 2020, it was decided that the LPS provisions regarding care home managers would not be brought into force in April 2022. The care home manager role would have involved care home managers arranging assessments and gathering information to determine whether a person would be deprived of their liberty under the proposed care arrangements, whether the person objected to those arrangements and whether the arrangements met the required conditions for the deprivation to be authorised. The role of the care home manager proposed under the LPS was designed so that people who know the person well and understand their wishes and feelings, could lead the LPS process, which would in turn reduce the burden on local authorities and Clinical Commissioning Groups.
In the LPS Steering Group meeting minutes which were published by the Department of Health and Social Care (“DHSC”) on 10 November 2020, DHSC officials, “acknowledged that the role of the care home manager in the MC(A)A 2019 has always been contentious. They explained that the Government has heard representations from across the sector, both for and against this role, and considered its potential very carefully. The Government has decided not to implement this aspect of the MC(A)A in England, for now. The relevant provisions in the Act will therefore not be commenced in April 2022.” The meeting minutes also stated that, “These aims are still valid, but the Government has decided that now is not the right time to introduce the role.”
The Government will instead focus on introducing all other aspects of the LPS and working productively with stakeholders to ensure that implementation in 2022 is a success. The meeting minutes state that, “Staff who care for the person every day and therefore know them best will, alongside the person’s family and friends, still play a vital role throughout the assessment process and during the consultation stages of the LPS process, in particular by helping decisions makers to establish the person’s wishes and feelings.”
In the meeting minutes, officials explained that the next major milestone is likely to be the publication of the revised ‘Impact Assessment of the Mental Capacity (Amendment) Act 2019’ in Autumn 2020. This impact assessment will cover the policy at the time of the primary legislation and will not take account of policy detail set out in the draft regulations as these will be covered by future impact assessments. The Government is aiming to undertake a public consultation on the draft regulations and Code of Practice in Spring 2021 and the consultation period will run for 12 weeks.
DHSC officials explained that the Government had made a series of decisions about the detail of draft regulations and these will from part of the public consultation in Spring 2021. The Government will also take into account the outcome of that consultation before it makes any final decisions about the design of the LPS.
The minutes of the meeting set out what the draft regulations will cover:
- The Independent Mental Capacity Advocate (IMCA) role under LPS will be set out in regulations. These regulations will amend existing IMCA regulations set out under the MCA. IMCAs will, for example, have the power to prepare a report in relation to the arrangements or proposed arrangements for the Responsible Body.
- Eligibility criteria and statutory training needed to be an Approved Mental Capacity Professional (AMCP) under LPS will be set out in a distinct set of regulations. Required training will include a conversion course for Best Interests Assessors (BIAs) under the DoLS to become AMCPs under LPS. The regulations will explain which bodies will deliver the required training for the AMCP role. Practicing Social workers, nurses; Speech and Language Therapists, psychologists and occupational therapists will be eligible for the AMCP role. These regulations will also include a definition of a prescribed connection to a care home. Individuals who meet that definition will not be able to act as an AMCP in certain cases.
- A set of transitional regulations will set out the legal framework for LPS and DoLS to run alongside each other for the first year of implementation. This will ensure that people who are subject to a DoLS authorisation or a Court Order that runs into the first year of LPS implementation, are still able to access the necessary safeguards until their authorisation or Order ends.
- A set of assessments regulations will set out who is able to carry out assessments and determinations under LPS.
- A set of consequential regulations will amend other pieces of legislation that will need updating as a result of the MC(A)A 2019.
DoLS and the Mental Capacity Act 2005
While we wait for the LPS to be implemented, the principles of the Mental Capacity Act 2005 (“MCA 2005”) and the safeguards provided by DoLS still apply. Providers should continue to ensure compliance with this important area, by making the necessary DoLS applications to local authorities, in order to reduce the risk of people being deprived of their liberty without the proper authorisation. Good use of the MCA 2005 can help providers support people using services around areas of consent, decision-making and in upholding human rights. In CQC’s annual ‘State of Care’ report published in 2019, CQC found that people were waiting too long to have their DoLS applications processed, which risked infringing their human rights. CQC also found that providers’ lack of understanding and confusion around DoLS legislation remained a primary reason for poor practice.
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 (and notify CQC at the same time). If a deprivation is unlawful it can lead to CQC 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.
In an update on CQC’s website dated 16 July 2020, CQC stated that it had seen a sharp drop in notifications of the outcome of DoLS applications. It stated that it had “seen notifications from adult social care services drop by almost a third (31%), and in hospitals by almost two-thirds (65%).” All providers should continue notifying CQC about the outcome of DoLS applications. The DHSC guidance, ‘The Mental Capacity Act (2005) (MCA) and deprivation of liberty safeguards (DoLS) during the coronavirus (COVID-19) pandemic’ was updated on 11 November 2020 in line with the new national lockdown restrictions (which began in England on 5 November 2020) and contains useful information to help providers deal with the challenges posed by the pandemic in relation to depriving people of their liberty.
As stated in the meeting minutes, the role of the care home manager under the LPS has always been controversial. Some of the concerns related to care home managers’ abilities to perform the role and the main concern was in relation to potential conflict of interest issues arising with some feeling that care home managers lacked the independence needed to lead the process. Care home managers are also already extremely busy in their roles and the role proposed under the LPS would increase the burden on care home managers.
However, the care home manager role is not off the table yet and the Government has said that it will continue to review the care home manager role as it prepares for the implementation of the LPS and its thinking in relation to this issue will also be informed by responses to the public consultation on LPS, which is planned to take place in 2021. LPS and DoLS will run alongside each other for the first year of implementation. 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. In the meantime, providers will need to continue using the existing DoLS framework to ensure that appropriate authorisations are in place.
As the Government will be focusing on introducing all other aspects of the LPS for implementation in 2022, it is fundamental that over the next year and a half, providers prepare and train senior staff and managers so that they are ready for these changes. 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.