Mental Capacity (Amendment) Bill [HL]

Written evidence submitted by Dimensions (MCAB55)

Executive Summary

- The wishes and feelings of the cared for person must be central to the bill

- The bill is anomalous and over-complicated in relation to care home arrangements and requires amendment

- The bill does not provide adequate safeguards to cared for persons in independent hospitals and requires amendment

- Rights to information before authorisation of arrangements must be retained in the bill

Introduction

Dimensions is a not-for-profit support provider for adults with learning disabilities and autism. Presently, Dimensions supports around 4,000 people across England and Wales, some of whom are subject to the Deprivation of Liberty Safeguards scheme.

As a support provider to people with learning disabilities and autism we are interested in ensuring that the rights of people with support are upheld.

Dimensions also wants to see a simple and effective system for safeguarding people’s rights, which is not over burdensome on those responsible for those delivering care and treatment arrangements. This includes a streamlined process for authorising arrangements, clear rights and responsibilities in relation to advocacy and independent oversight, and adequate resourcing for bodies responsible for reviewing and authorising arrangements.

This submission gives evidence in relation to:

- Section 1: About the Bill

- Section 2: Progress of the Bill

- Section 3: Care Homes

- Section 4: Independent Hospitals

- Section 5: Rights to Information

1. About the Bill

1.1 The bill makes provision to introduce the Liberty Protection Safeguards for people deprived of their liberty for care and treatment and who do not have capacity to make a decision in relation to their care and treatment.

1.2 The Liberty Protection Safeguards will replace the current Deprivation of Liberty Safeguards. The bill follows a lengthy period of consultation by the Law Commission, though the legislation differs significantly from the Commission’s recommended bill.

1.3 At present, there is a backlog of around 137,000 [1] DoLS applications, the significant majority of which relate to people in care homes. This follows the Cheshire West ruling, which expanded the number of people considered to be deprived of their liberty and thus in need of DoLS.

2. Progress of the Bill

2.1 We are concerned by the haste with which the bill has progressed and the lack of opportunity for consultation with stakeholders.

2.2 We welcome much of the change to the bill introduced in the House of Lords, but the bill is incoherent and overcomplicated in some places, particularly the anomalous role of care home managers and care home arrangements.

2.3 The bill is intended to resolve issues in the DoLS scheme, which has a substantial backlog, leaving over 100,000 people essentially illegally deprived of their liberty. Current issues with the bill may mean that it does not prove an effective solution to the problems presented by DoLS.

2.4 On the current timetable there has not been sufficient time to meaningfully consult with stakeholders, including people with learning disabilities and autism, their families, professionals and others in the sector. This is concerning.

2.5 To date, there has been much discussion of the regulations and Code of Practice to remedy some of the concerns that have been raised over the bill, yet this remains unpublished. We urge the government to publish a draft Code of Practice to assist with scrutiny of the bill.

3. Care Homes

Role of the care home manager

3.1 The bill retains a process in which care home managers might take responsibility for preparing an LPS application in advance of the pre-authorisation review. This includes identifying where someone might be deprived of their liberty; sourcing assessments relating to capacity and necessity and proportionality; carrying out consultation; and making a statement as to whether the cared for person is objecting.

3.2 We are concerned that care home managers will not be equipped, both in terms of skills and in terms of resources, to fulfil this role effectively. The bill currently allows for the responsible body to take over this process under paragraph 15, but there are no criteria by which a responsible body might decide to take this step.

3.3 The bill creates a perverse incentive for care homes to underperform or make poor preparations for authorisations, on the understanding that the responsible body may then be more likely to remove these responsibilities on them. Additionally, it makes the role of the responsible body far closer to a ‘rubber stamping’ exercise, which may reduce the overall scrutiny applied to an application for authorisation under LPS.

3.4 Even where the care home performs well in relation to these responsibilities, the government has not outlined any additional training or resources that might be given to care home managers to assist them in performing preparations for a pre-authorisation review. As a result, it may be the case that good care homes are essentially penalised for their performance, being left to carry out preparations with no additional resources.

3.5 Finally, consultation with the cared for person should be central to the authorisation process and the wishes and feelings of the cared for person must be given sufficient weight in decision making about care and treatment arrangements. Given the other typical responsibilities of a care home manager we are concerned that the wishes and feelings of the cared for person could compete with other priorities for the care home manager in consultation.

3.6 We recommend that all responsibilities are retained by the responsible body, as originally proposed by the Law Commission. This will streamline the process and avoid possible conflicts of interest or perverse incentives for care home managers.

Pre-authorisation review

3.7 The bill places limitations on who can carry out a pre-authorisation review for care home arrangements, so that no one with a prescribed connection to the care home can carry out a review.

3.8 It is unclear who the government envisages performing this role and we fear that the system may become overly complicated and bureaucratic. Whilst we welcome amendments made to the bill and the efforts to mitigate the conflicts of interest that existed in the bill when it was introduced, we emphasise that the bill must be workable in practice.

3.9 In a pre-authorisation review the decision maker will make decisions in relation to the person’s capacity, the deprivation of liberty, the necessity and proportionality, and the need for advocacy. It is difficult to identify who would have an appropriate level of skill and knowledge to perform a preauthorisation review outside of the responsible body or a specialist such as an Approved Mental Capacity Professional.

3.10 We recommend that only and Approved Mental Capacity Professional or someone with an equivalent level of knowledge and skill within the responsible body should be able to carry out the pre-authorisation review. This would remove any issue in relation to a conflict of interest and avoid an overly convoluted process for finding a person without a prescribed connection to the care home. Furthermore, it would mean that the decision maker would also belong to the body with ultimate responsibility if the authorisation should prove unlawful.

4. Independent Hospitals

4.1 Currently, the hospital manager for an independent hospital assumes the role of the responsible body. This must be changed as a matter of urgency.

4.2 There is a clear conflict of interest, in that the independent hospital will rely on revenue from bed occupancy and may also benefit from more restrictive care and treatment regimes in order to reduce staffing levels.

4.3 As it stands, there is no external safeguard for someone deprived of their liberty in an independent hospital, unless the responsible body (i.e. the hospital manager) decides that the cared for person should have independent advocacy or someone else raises concerns on behalf of the cared for person.

4.4 Given the recent media coverage of abuse, maltreatment and patient deaths in independent hospitals for people with learning disabilities and autism, we believe that such settings need the highest degree of scrutiny.

4.5 We are concerned that the NHS Long Term Plan has set unambitious targets for reducing the number of people in inpatient settings. The bill as it stands is unlikely to support acceleration of transitions into community based support.

4.6 The bill must be amended to ensure that any individual deprived of their liberty in an independent hospital is entitled to support from anIMCA.

4.7 The bill must be amended to ensure that an Approved Mental Capacity Professional has oversight of any authorisations in independent hospitals. We welcome the government’s amendments in relation to this issue.

5. Rights to Information

5.1 We welcomed amendments to give rights to information on the face of the bill before the cared for person has care and treatment arrangements authorised. Understanding rights in relation to the deprivation of liberty is an essential safeguard.

5.2 We are concerned by amendments tabled to provide information to the cared for person (alongside the appropriate person and/or Independent Mental Capacity Amendment) after an authorisation has been made. In particular because the process and outcome of a pre-authorisation review might be substantially different were certain rights triggered in advance of the authorisation.

5.3 This is particularly true in relation to the right of the cared for person to have oversight from and Approved Mental Capacity Professional and accessing and Independent Mental Capacity Advocate. Both of these rights must be known to the cared for person and any appropriate person, as well as an advocate prior to an authorisation.

January 2019


[1] Haynes, L. (2018). Number of completed DoLS cases up by 20% in past year but backlog continues to grow. Community Care. Available at: https://www.communitycare.co.uk/2018/10/03/number-completed-dols-cases-20-past-year-backlog-continues-grow/ [Accessed 14 Jan 2019].

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Prepared 16th January 2019