Much to the surprise of people who thought there would be no reform or parliamentary time for the Deprivation of Liberty Safeguards (DoLs) legislation, the past year has proved that is not the case.
In July we saw the Mental Capacity (Amendment) Bill introduced. This Bill abolished the Deprivation of Liberty Safeguards, by deleting Mental Capacity Act 2005 (MCA) Schedule A1 and 1A, and added instead a new Schedule AA1. This was anticipated to be known as the ‘Liberty Protection Safeguards’, although the Bill does not use that title explicitly. It is expected to save councils £200 million a year.
Many people within the sector, including care providers, charities and residents’ groups, have voiced concerns about the proposed bill. These centre around the new responsibilities on registered care home managers to secure the authorisation of care and treatment regime’s that deprive residents of their liberty.
The Law Commission’s original proposals for the reform did not include this change to the care home arrangements, and it is not clear why these proposals were not followed. The Law Commission’s proposals included seeing the responsible body (a local authority in care home cases) arrange key assessments.
The main concerns were around the potential conflict of interests for care providers. There was also issues around care home managers having inadequate information about less restrictive alternative living arrangements to support decisions and a lack of resources and skills to undertake assessments. While local authorities would still be responsible for signing off authorisations, the proposals gave care home managers responsibility to decide whether the authorisation conditions were met, consult with those close to or caring for the person and determine whether the person is entitled to an IMCA.
The potential for care home managers to face conflicts of interest during these tasks are huge by being responsible for safeguarding the rights of people deprived of liberty in the homes they run. Martin Green, Chief Executive of Care England, said “shifting responsibilities” to care home managers is a “clear conflict of interest”.
As of the 12 November, the Bill began its report stage in the House of Lords. This is a further chance to examine the bill and make changes. Members discussed a range of subjects but most importantly the issues surrounding the role of care home managers.
“You would have to have had ears of cloth not to have heard the concerns raised by noble Lords and stakeholders throughout the passage of the Bill about the proper role of care home managers. I agree that we must be absolutely clear at this stage in legislation about what is the right role for those care home managers. I also agree that there should be no scope for any conflict of interest—not when we are talking about the safety and care of very vulnerable people—and that we should ensure that all assessments are completed by those with the appropriate experience and knowledge. Furthermore, people should always have confidence that they will have access to independent support and representation” said Lord O’Shaghnessy, The Parliamentary Under-Secretary of State, Department of Health and Social Care.
The members confirmed that the appropriate role for care home managers was in ‘identifying that someone may lack capacity and need restrictions as part of their care’. They agreed the role would be proposed and clarified through some amendments in the Bill.
These amendments were: –
- Amendment 30 requires the responsible body to make a decision on whether it is content that it is appropriate for the care home manager to carry out the relevant functions prior to authorisation, including arranging assessments and carrying out consultation.
- Amendment 90 applies this decision to reviews as well.
- Amendment 52 explicitly excludes care home managers or people from undertaking the assessments if they have a specified connection to the care home, in particular if there is a financial connection
- Amendment 53 would have the effect of requiring that the person who conducts the assessment has the appropriate skills and knowledge.
Lord O’Shaughnessy said that Amendment 30 was ‘an important change because it provides additional protections in cases where there may be concerns about a particular provider and its capability for conducting its role, and its allows responsibility to take on all the relevant functions in these cases”.
The amendments show that much needed consideration is being given to the role and the position for care home managers has shifted already. As Lord O’Shaughnessy said, any potential conflict of interest must be addressed when ‘we are talking about the safety and care of very vulnerable people’. However, why was it not the starting point to consider the potential conflict of interest? Concerns will surely rise in relation to Amendment 52 as to whether this will overcome the issue.
Providers are advised to keep a careful check on these developments, bearing in mind the Bill should be out of the House of Lords by the end of November 2018. It will then go through the House of Commons early next year, with Royal Assent likely by April 2019. Practically speaking its unlikely to come into force until the end of 2019.