Mental Capacity (Amendment) Bill [HL]

Written evidence submitted by a group of Best Interest Assessors, Sheffield City Council (MCAB54)

DoLS and the new Liberty Protection Safeguards

We are a group of experienced health and social care professionals, currently working as Best Interest Assessors, carrying out assessments under the Deprivation of Liberty Safeguards. We are writing to express our concerns regarding the Mental Capacity (Amendment) Bill, also known as the Liberty Protection Safeguards, which is set to replace DoLS in the near future.

In our view, the DoLS legislation provides an essential framework to protect and support hundreds of thousands of vulnerable adults, whose voices may otherwise not be heard.

The background to this legislation, and the subsequent Court test cases, has evidenced the importance of a specialist assessment to help ensure that such vulnerable people have the best quality of life that their situation allows.

There have been, without doubt, many flaws in the current system. These have primarily concerned the sheer number of assessments that have needed to be undertaken, and the fact that the process allows very limited opportunity to focus resources on those individuals who most need attention. This has resulted in long waiting lists, and a top heavy, expensive procedure, in which the ‘one size fits all’ paperwork has at times seemed cumbersome and unnecessary.

However there is no doubt in our minds that the DoLS legislation has also worked tremendously well to protect, and improve the quality of life of many vulnerable people who are being cared for by others, without being able to consent to the care and treatment that they receive. We would wish that any proposed changes would ensure that this level of protection is maintained.

Sadly this does not appear to be the case in the proposed new scheme. Below we highlight our main areas of concern:

The role of care home managers

· In our experience of visiting hundreds of care homes over the past few years, there is a major lack of understanding of both the principles of the Mental Capacity Act, and DoLS. This has included an inability of care home managers and their staff to carry out adequate capacity assessments on a routine basis or submit timely and well-evidenced applications to the Supervisory Body (local authority) under the current system. Partly, of course, this is the result of care home staff being overloaded with very demanding and difficult work. However, under the proposed legislation, care home managers will be given the additional responsibility of deciding who is being deprived of their liberty, which includes an assessment of whether or not that individual has the capacity to agree to their care and treatment. We are concerned that care home staff do not currently have the necessary skills, time or depth of experience to carry out this role effectively. In this context the proposed half day training seems to woefully underestimate this problem.

· Under the new proposals, care homes will also be given responsibility for identifying whether the person is ‘objecting’ or not. If the person is deemed to be objecting then this will trigger an additional level of scrutiny, making this part of the assessment process crucial. In our experience, assessing whether or not a person, who lacks capacity to consent to their care arrangements, is objecting, is difficult and complex. We often find that a care home’s view of whether or not a person is objecting is at odds with our own assessment. Objection is often dismissed because it is intermittent or is seen merely as a symptom of that person’s mental health condition.

· By removing the ‘best interests’ component of the DoLS legislation, there is no requirement to take into account the vulnerable person’s past and present wishes and feelings. Instead, the care home manager (instead of the Best Interest Assessor/ Approved Mental Capacity Professional) will be required to assess that the arrangements for the person are ‘necessary and proportionate’. Not only will this assessment require considerable time if it is to have any meaning, or be effective, but there is surely a danger that the home will have a vested interest in acting conservatively in this matter. Care Home managers, by no fault of their own, have little experience or knowledge about services available to people living independently in their own homes and therefore may be more likely to be somewhat risk-averse.

· We believe that the removal of any form of independent assessment and oversight (which is currently provided by BIAs) in the vast majority of cases is a major flaw in the proposed new scheme.

Role of the Reviewer

· Although in the new draft legislation, all assessments must be reviewed before an authorisation for detention is given, we are concerned that there is no requirement that this should be a robust or meaningful process. There is no requirement for the reviewer to have completed any particular training or to have any relevant qualifications or experience. As such, there is a risk that this review could become a mere formality, with the vulnerable adult not gaining any additional benefit from this part of the process.

Role of the Approved Mental Capacity Professional (AMCP)

· We are concerned that the Bill proposes that only cases where the relevant person has been identified as objecting will be referred to an AMCP. A referral to an AMCP will not be made if friends or family members are objecting, or if restrictions have been imposed on friends or family visiting the relevant person, or taking them out of the care home. In our opinion, these situations also require an additional level of independent scrutiny.

· The new proposals remove the power to impose conditions on the care provider. In our considerable experience, the ability to impose conditions which are legally binding on the care home or hospital have been an important tool to help improve the quality of life of the vulnerable people we have assessed. Conditions are frequently used to reduce the restrictions imposed on the individual. These restrictions have generally been imposed by the care home, in the belief that they are necessary and proportionate and in the best interests of the person. However, when we have discussed alternatives with staff, it has generally led to the conclusion that less restrictive measures are possible. When these have been implemented, it has often proved to be beneficial for the vulnerable person.


· We are aware that currently there is a very low rate of appeals from people subject to DoLS compared to those detained under the Mental Health Act. We are concerned that giving care home managers the responsibility of determining whether to appoint an appropriate person or IMCA to represent the person who is deprived of their liberty may put a further barrier to people being supported to exercise their right to appeal.

We believe that these are some of the fundamental flaws in the proposed legislation. We would like to ask you to consider whether the cases that helped shape the Deprivation of Liberty Safeguards legislation (such as the Bournewood and Neary cases), would have come to public attention and resolution had the proposed new scheme been in place. In our view, it is quite frightening to think that the hospital / care homes concerned could have considered that all of the restrictions that they had put in place were both ‘necessary and proportionate’, and that they could have themselves have signed off these arrangements without further scrutiny. It is very likely that neither HL nor Stephen Neary would have been identified as ‘objecting’, meaning that no referral to an AMCP would have been made.

Re: Statutory Definition of Deprivation of Liberty.

We would like to make the following comments:

1) This is not a definition of a Deprivation of Liberty, but rather a number of suggestions about what does not constitute a DoL. An outline of what is currently considered to be a DoL is would be much more  helpful.

2) A DoL can occur in a variety of placements, including someone’s own home, (where they may still object to ‘continuous supervision and control’), and is not necessarily dependent upon the setting alone, but includes the impact that the implementation of care has upon the person. Leaving the placement may not be the main issue.

3) Surely someone who is only able to leave the placement temporarily (while still subject to supervision), must still be deemed to be deprived of their liberty? We are aware of a number of cases where P has been allowed to leave placements unescorted for periods of time, but have still been deprived of their liberty because of other essential restrictions upon their activities.

4) Point (5) is grammatically difficult to comprehend, and as such does not make sense even to professionals.

5) (4) (a) Lots of physical injury or illnesses have serious impact and implications upon someone’s Mental Health and/ or Capacity. (b) Unclear what the implication of this is: Does this mean for instance treat someone affected by a stroke that only affects physical attributes the same as someone affected by a stroke that affects capacity, decision making, or speech the same?

Yours sincerely,

Graham Banks

Kelvin Skidmore

Julie Marshall

Caroline Diamond

Clare Hardwick

Ruth Grinold

Best Interest Assessors, Sheffield City Council

January 2019


Prepared 16th January 2019