Mental Capacity (Amendment) Bill [HL]

Written evidence submitted by Leicestershire County Council DOLS Service (MCAB63)

Re- Comments for consideration to The House of Commons Public Bill Committee on The Mental Capacity (Amendment) Bill 2018.

We are writing to you on behalf of the DOLS Service for Leicestershire County Council to inform your considerations for further amendments to the above Bill. We are the management team for the service that currently oversees and implements the Deprivation of Liberty Safeguards for Leicestershire, both in terms of our duties as a Local Authority and our roles as Supervisory Body. For brevity, we will refer to the above under the unofficial title of the Liberty Protection Safeguards (LPS) throughout this document.

Firstly, we are largely positive about the amendments the House of Lords have enacted during their consultation period and feel they have tried to steer a focus back on to what we believe is the primary purpose of these safeguards- to promote the Human Rights of vulnerable people whose needs have meant they are unable to make autonomous decisions about their residence for care and treatment, and whom may have significant restrictions on their freedom of movement. We are realistic and pragmatic that the current DOLS system has unsustainable demands which create barriers to upholding the rights of those it is meant to serve, and that this either needs to either change or be appropriately resourced. However we would like to express our disappointment at the speed at which this Bill has been passed through Parliament and feel this has not allowed proper consideration or consultation on this extremely important safeguard. Knowing the short timescale with which yourselves now have to consider these submissions, it is hoped that either further public consultation will be allowed at a future time or your consultation period might instead be expanded.

We are mindful that the current proposals for the above Bill pose concerns about the suitability of this legal process to appropriately meet its purpose, and also feel there remains significant prospects for us to again be left with an ineffective, under resourced legal procedure in place. We would therefore respectfully ask for you to take into consideration the following comments-

Definition of deprivation (particularly domestic deprivation)- The current Re X procedure to authorise community deprivations is cumbersome and places substantial burdens on the Court of Protection, Local Authorities and CCG’s, often to the detriment of those it is intended to safeguard (particularly in terms of the protracted time this takes, as well as the cost to the public purse). Therefore we feel it is positive that the LPS is looking to encompass domestic deprivations of liberty for which the State is aware.

We would ask however that any definition of deprivation covers these circumstances clearly, and that the scope of any definition takes into account a realistic forecast of the numbers of people this might then apply to. This is necessary to ensure that the responsible bodies are adequately funded and resourced to ensure the LPS can be effectively implemented, to prevent processes from again being underfunded leaving public bodies unable to fulfil their statutory duties.

Associated training and potential training content- On a daily basis we see experienced health and social care professionals struggle with the criteria and requirements of the Mental Capacity Act 2005 and DOLS 2009, knowing that a decade has now passed since their implementation. We are therefore extremely mindful of what training and support will be given to those who will now be required to make complex assessments and decisions in relation to the LPS (both those who need to complete the necessary assessments on behalf of the Responsible Body, as well as those who will be completing Pre-Authorisation Reviews), knowing that the current proposals suggest that this complex, often emotionally challenging work may fall under the remit of staff who currently have no professional registration or regulated training.

Knowing that BIA’s (and subsequently AMCP’s in the new scheme) have to undertake regulated and substantial postgraduate training, we would expect that anyone charged with undertaking these assessments has robust training and do not believe the current proposal of funding half a day’s training will be adequate. Knowing that Responsible Bodies will be asked to authorise deprivations of liberty on the basis of these assessments (by staff who they may have no contractual oversight for), they should be reassured that these assessments will be reliable and comprehensive in line with the legal requirements. This also has potential funding issues which we comment on further below.

We would ultimately suggest that you remove the ability for care home managers to provide s17 statements on the basis of assessments completed by staff that they have directed, and instead allow Responsible Bodies to instead decide which staff they feel should complete the required assessments needed for a deprivation under LPS to be authorised. Otherwise we would ask you to reconsider the requirements and financial impact of this training to ensure this is adequate.

Objection- Within the wider training issue is the recognition that what might currently constitute an objection to a person’s deprivation is very broad, and identifying this is a nuanced, skilled task that requires holistic consideration and consultation. Knowing that any objection by the person will need to be identified in the first instance by those undertaking the necessary assessments, we would also strongly request that any associated training and Codes of Practice clearly identify how objection might be identified by assessors of all abilities. We would also suggest s21(2) is amended to state that any objection by those noted within s20(2) of the Bill should also require assessment by an AMCP, knowing that Local Authorities retain a duty to ensure family disputes are resolved or taken before the Court of Protection as per the Neary caselaw.

Advocacy- we believe that everyone under an LPS authorisation should have access to an independent advocate who can have oversight of their ongoing care arrangements, views and wishes. We would request that an advocate also be appointed if either a Responsible Body or AMCP recommends this. Knowing the provision of advocacy commissioning usually falls to the Local Authority, the impact of funding this would need to be considered after the scope of the LPS is clarified to ensure this is adequately funded.

Assessments of mental capacity- Knowing that Lord O’Shaughnessy’s direction on behalf of the Government on 21/11/18 was that "capacity assessments should be completed by a registered professional such as a nurse, social worker or occupational therapist", this is complicated by the position that care homes hold a responsibility to ensure these assessments are completed but may not employ any of these professionals. We would ask that there is clear confirmation on how these professionals will be accessed for care home assessments, and clear consideration of any funding implications for this is undertaken to ensure this is appropriately resourced and funded.

Assessment of mental disorder- As a wider organisation we have significant issues with accessing GP services to support the current MCA 2005/ DOLS regimes, and also struggle to get GP’s to commit or input to wider assessments of mental capacity even when it is appropriate for them to do so. This is with the recognition that GP services are currently in crisis, with both the British Medical Association and the Royal College of General Practitioners stating that they are faced with significantly decreasing numbers of GP’s, increasing demand for their services and declining funding for general practice. There appears to be no provision within any current proposals for either Responsible Bodies or GP services to be specifically funded to support the required medical statements or assessments that will satisfy the new regime, and we would ask that this is specifically considered in terms of impact funding and the Codes of Practice guidance.

Assessment of best interests- Recognising that the Government has already advised that the concept of best interests will remain in line with the current s4 of the MCA 2005 within the wider LPS, we believe that embedding the concept of best interests within the wider LPS assessments is necessary to ensure that any interference in a person’s life must consider that person as an individual. This is key in retaining personalised consideration of the person for whom the LPS relates to, knowing that there is still widespread issues with the understanding of the MCA 2005 and its implementation in practice.

Assessment to confirm the person is not excluded (Mental Health Act 1983 interface)- the current SLAM caselaw that underpins the interface between the DOLS 2009 and MHA 1983 is not well understood in practice. We would recommend that any accompanying Code of Practice to the LPS gives clear guidance on how this interface should be interpreted, or ideally any incapacitous person receiving inpatient mental health treatment should instead have their deprivation authorised under the MHA 1983 to help to remove this confusion entirely.

Provision of AMCP’s- the current proposal states that Local Authorities are responsible for the provision of AMCP’s, but we do not believe that the current Impact Bill adequately considers the ongoing funding requirements of this. We would suggest that either the impact funding for this is reviewed, or as an alternative each Responsible Body is instead given the duty of training and supplying its own AMCP’s (with Local Authorities retaining the responsibility of warranting these professionals).

Funding- Further to the comments above, we are concerned that the current funding projections within the DHSC Impact Assessment for this Bill do not appear to be underpinned with reliable evidence as to how the scope of the LPS has been reached in this. This is especially notable when the definition of deprivation remains unconfirmed, and so there is no starting point from which we might consider the population which the LPS might apply to. There remains a huge potential therefore that we end up with another underfunded system that prevents Responsible Bodies from meeting their statutory duties to the detriment of citizens and their rights.

Other points- We would suggest that further consideration is given to the potential for the AMCP role to be expanded to allow these professionals to undertake all assessments (other than mental disorder) to authorise deprivations of liberty within care homes, nursing homes, hospitals and the community, and for them to be able to authorise these deprivations on behalf of the Responsible Body. This would largely mirror the role of AMHP’s within the Mental Health Act 1983, knowing that the current review of the MHA 1983 does not pose significant changes to the AMHP role ongoing. This would reduce the bureaucracy and costs of the current system to both Local Authorities and the Court of Protection, recognising that the Court of Protection would remain as the independent Court which people could apply to to exercise their right to appeal. This is with the recognition that this would need to be explored in terms of impact assessment.

We thank you for the invitation to submit comments for your consideration of this Bill, and look forward to seeing the ongoing progress of this through the Parliamentary process.

Yours faithfully,

Kelly Kaiser, Susan Callis and Neil Parry

Service Managers- Deprivation of Liberty Safeguards Team

Leicestershire County Council

January 2019


Prepared 22nd January 2019