Mental Capacity (Amendment) Bill [HL]

Written evidence submitted by Devon County Council (MCAB67)

Liberty Protection Safeguards:

Full details of the consultation are available at the following link:

Devon County Council’s Response to the House of Commons Consultation on the LPS Bill as it now stands is as follows:

1. Care Home Managers: The fundamental weakness of the proposed Bill results from responsibility being moved away from specialist BI assessors for arranging assessments and co-ordinating the process to the care home manager. It is Devon County Council’s concern that leaving the responsibility to consult with Care Home Managers and the ability to carry out multiple assessments with care home staff, that there is a potential for a conflict of interest in terms of financial remuneration to the care managers for keeping the clients and the client’s deprivation of liberty being authorised. In addition, there appears to be little opportunity for oversight by the local authority in most cases. It is Devon County Council’s view that the local authority should have the power to identify suitable assessors rather than care home managers.

2. Wishes and beliefs of the person: Devon County Council believe that the bill should include a requirement for an assessment of the person’s views and, should they be opposed to any part of the care plan, or to their accommodation, then it could be ensured that an advocate could be appointed immediately. The person lacking capacity deserves to have their views taken into account in its own assessment, instead of being consulted as one of a long list of ‘others’.

3. Approved Mental Capacity Professional: Devon County Council believe that the Bill should be amended to include additional triggers for involvement/oversight by an Approved Mental Capacity Professional. For example, where family or others are unhappy with the arrangements or the patient un-befriended.

4. Advocacy: Devon County Council believe the Bill should be amended to increase the right to Advocacy to allow for an Advocate to be appointed at any time if considered appropriate by the Responsible body or an AMCP.

5. Renewals: Devon County Council consider the proposal to extend renewals to three years to be long a period time before a proper review of the detention is undertaken as there may be critical changes within that period and therefore the current one-year review period to be appropriate.

6. Private Hospitals: Devon County Council are concerned that Private Hospitals will be Responsible Bodies despite the opportunity for conflict. Devon County Council agree that the more appropriate Responsible Body is the the relevant Clinical Commissioning Group/ Local Authority funding the placement.

7. 16- & 17-year olds: The LPS will apply to persons aged 16-17 and over however Devon County Council believe that the Bill should be amended to ensure those under 18 are afforded the same rights as provided under the Children Act 1989.

8. Conditions: Devon County Council agree that under the DOLS processes that conditions can be useful. There is no legal basis for the addition of conditions within the LPS Bill. Devon County Council believe that they should be added.

9. Professional Assessments Devon County Council believe that the Bill should be amended to state that registered professionals must complete the assessment of whether that person is deprived of their liberty and that it is necessary and proportionate

10. Code of Practice: Devon County Council notes that the bill relies heavily on a detailed Code of Practice and would request that as such, a draft Code of Practice is provided for scrutiny / consultation as soon as practicably possible.

11. Consultation: Devon County Council wishes to express its dissatisfaction at the fact that there does not appear to have been any consultation for practitioners to decide upon the definition of a deprivation of liberty, and the speed at which the Bill is being pushed through Parliament must not cost such consultation taking place.

12. Funding: Devon County Council believes the financial impact assessment to have overlooked key resource implications which will cause backlogs and low-quality assessment. Devon County Council note specifically that the Community DOL estimated figures and figures for numbers of patients objecting to their arrangements appear too low.

Laura Austin

On behalf of County Solicitor

For Devon County Council

January 2019


Prepared 22nd January 2019