3Authorisation of arrangements
The role of care home managers
34.Under the Law Commission’s proposed scheme responsible bodies would have undertaken or arranged the relevant assessments required before a deprivation of liberty can be authorised in all cases. That would have included assessments as to whether (i) the arrangements amount to a deprivation of the person’s liberty, (ii) that the person lacks the capacity to consent to the arrangements, (iii) they are of unsound mind, and (iv) that the arrangements for their care and treatment are necessary and proportionate.32
35.In a major departure from this, the Bill before Parliament sets out that for those living in care homes, responsibility for assembling the information required would fall to care home managers. This includes consultation with interested parties to ascertain the cared-for person’s wishes or feelings, determinations on the capacity of the cared-for persons, and whether the arrangements are necessary and proportionate. They would submit the outcomes of these assessments in a statement to the responsible body which would then review the information and decide whether to authorise the deprivation of liberty.
36.Under the Bill, in cases where it is reasonable to believe that the person does not wish to reside or receive care or treatment in the place provided for by the arrangements, the pre-authorisation review must be carried out by an Approved Mental Capacity Professional (AMCP).33 In the care home setting it would be the care home manager who would be responsible for ascertaining whether someone is objecting and therefore eligible for the involvement of an AMCP.
37.Similarly, access to an Independent Mental Capacity Advocate (IMCA) for those in care homes would also be gained via the care home manager. Where a person lacks capacity to consent to being represented and supported by an IMCA, the care home manager would have to notify the responsible body if they believe that it would be in the cared-for person’s best interests to have one.
38.Concerns about these proposals have been voiced from various quarters including representatives of local government,34 care providers,35 NGOs,36 and legal professionals.37 Objections to the proposal centre on whether care home managers have the necessary skills and knowledge to arrange or undertake the assessments and whether they are sufficiently independent to do so.
39.It is questionable whether care home managers are trained and resourced to take on these additional responsibilities. It is also unclear who would be responsible for undertaking the necessity and proportionality assessment (other than someone with “appropriate experience and knowledge”). Undertaking an assessment of necessity and proportionality would require at least some understanding of the meanings of these terms including for the purposes of satisfying Article 5 ECHR.
40.There is a need to clarify the scope of the role of care home managers. The impact assessment provided by the Government suggests that care home managers would be provided with only half a day’s familiarisation on the new scheme.38 Even if care home managers would be arranging, rather than undertaking, the assessments, in our view, it is doubtful that they could develop the requisite knowledge and skills in this time frame.
41.It is welcome that the Care Quality Commission (CQC) would have a role in checking authorisations as part of their inspections process.39 As a further safeguard we suggest that in care homes rated by the inspectorate as “inadequate” or “requiring improvement”, assessments should not be undertaken or arranged by the care home manager but by someone within the responsible body itself. In such cases the independent review would then be carried out by someone from within the same responsible body so it would be important that the Code of Practice sets out clear guidelines to ensure that the review is truly independent. We consider this wider issue further at paragraph 54.
42.Serious questions have also been asked about whether care home managers are sufficiently independent to take on this new role. There is arguably an inherent conflict of interest if the person arranging the assessment also has a financial interest in securing placements in the care home. Professor Martin Green OBE, Chief Executive of Care England, which represents independent providers of adult social care said in a statement:
“As providers we are very concerned about the inherent conflict of interest associated with placing Liberty Protection Safeguards assessment responsibilities on registered care home managers.”40
43.In response to such criticisms, the Government has stated that “care home managers are not approving authorisations themselves; that role remains with Local Authorities, which will provide independent scrutiny and oversight”.41 However, unless the care home manager indicates that an AMCP referral is required, the only information available to the responsible body upon which to conduct its pre-authorisation review is the information supplied by the care home manager.
44.In light of this, it is a significant concern that the statement that care home managers would be required to provide to the responsible body (Schedule 1 (14)) does not appear to include a record of the assessment of necessity and proportionality, only the capacity and medical assessments. We recommend that the Bill is amended to require that care home managers must provide a record of the necessity and proportionality assessment. We suggest the following amendment:
Schedule 1, paragraph 14
Amendment 3
Page 11, line 32, after “paragraph 15” insert “and 16”.
45.The Government has asserted that its proposals provide the degree of independence required by the case law arising from Article 5 ECHR.42 We accept that the proposals relating to care home managers are likely to be compliant with this requirement. However, we remain concerned that, in practice, care home managers would face conflicts of interest that will seriously hinder their ability to make objective assessments.
46.Our concerns are heightened by the fact that the care home manager would be tasked with determining whether the cared-for person should have access to either an AMCP or an IMCA. Both these roles provide important safeguards of the individuals’ rights under Article 5 ECHR and decisions about who requires such safeguards should be made independently.
47.It was a key feature of the Law Commission’s proposal that assessments should be carried out as an integral part of routine care planning, before arrangements for care or treatment are put in place (under DoLS they happen afterwards). The ‘illustrative person journeys’ published by the DHSC to show the differences between the two schemes suggests that this aspiration is retained under LPS, with care home managers being expected to arrange or conduct their assessments before an individual moves into the care home.43 We question how this would work in practice. Particularly in cases where no suitable assessment already exists on which they can rely, how would the care home manager be able to ascertain the wishes and feelings of a person they may not even have met?
Conclusion
48.Whilst some of the provisions in the Bill may comply with Article 5 ECHR, we have serious reservations about whether the Bill does enough to protect those who are at risk of unlawful detention. We are also concerned that the Government’s impact assessment significantly underestimates the resources required for implementation. For example, we question the assumption made in the Government’s impact assessment that “there will be no net change in costs to providers of authorisations and administration.”44
49.If the Government goes ahead with its proposal for care home managers to facilitate the assessment process, it is essential that safeguards for those subject to the authorisation process are enhanced including: a duty to consult the cared-for person directly; a broader criterion for referral to an AMCP; and a requirement for a stronger right to an independent advocate. Amendments to the Bill to affect these changes are set out below.
Duty to consult
50.Schedule 1 (17) sets out who the responsible body or care home manager must consult with in order to ascertain the person’s wishes and feelings in relation to the arrangements. Conspicuously absent from the list of consultees are the cared-for persons themselves. This seems to be at odds with the Minister’s statement in his letters to Peers of 24 July 2018 that “[d]uring the assessment process, the person’s wishes and feelings must be identified through consultation with the individual and others who care for them. This consultation duty is more explicit than that currently required under the DoLS requirements [ … ]”45
51.To ensure that this is the case and in light of the requirement under ECHR case law that consideration should be given to the wishes and feelings of the cared-for person,46 we consider it essential that the cared-for person be included among the list of consultees. We suggest the following amendment:
Schedule 1, paragraph 17
Amendment 4
Page 12, line 24, at end insert -
“(a) the cared-for person”
Referral to an Approved Mental Capacity Professional
52.The Bill introduces the new role of Approved Mental Capacity Professional (AMCP) - a health or social care professional who is specifically trained to carry out assessments in the cases most in need of independent oversight.47 The AMCP would act “on behalf” of the local authority but would be an independent decision-maker who cannot be directed to make a particular decision.
53.As currently drafted, the legislation only permits a referral to an AMCP when the care home manager or responsible body has a reasonable belief that the person does not wish to reside or receive care or treatment in the place provided for by the arrangements.48 We are concerned that this criterion is too narrow, particularly in the context of care homes. At a minimum, it should be broadened to include cases in which relatives or those with a genuine relationship with the cared-for person object.49 Other situations in which referral to an AMCP might be appropriate include those in which the cared-for person is prohibited contact with named persons, when the person is deprived of their liberty for psychiatric treatment, or in exceptional cases, such as those with very high levels of restraint. We suggest the following amendment:
Schedule 1, paragraph 18
Amendment 5
Page 13, line 15, at end insert -
“(c) relatives of the cared-for person, or those with a genuine relationship with the cared-for person, object to the care and treatment arrangements, or
(d) the cared-for person is prohibited from making contact with named persons, or
(e) the cared-for person is subject to high levels of restraint, or
(f) the care home manager or responsible body considers the case to be exceptional.
(2) For the purpose of sub-section (1)(c), a person with a “genuine relationship” with the cared-for person may be a relative, friend, carer, or anyone who can be reasonably expected to be concerned for the welfare of the cared-for person.”
Independence of reviews
54.Human rights law requires that authorisations of deprivations of liberty are reviewed independently. Accordingly, the Bill provides that a person who is not involved in the day-to-day care of, or in providing any treatment to, the person must also carry out a pre-authorisation review to determine whether it is reasonable for the responsible body to conclude that the authorisation conditions are met. In cases where the person is objecting to the proposed arrangements, an Approved Mental Capacity Professional must carry out the pre-authorisation review.50
55.In our view, these proposals are technically compliant with the Article 5 requirement for independence, although it is always open to States to have higher standards. We reiterate the concerns expressed in our previous report that the review process is not free from conflict of interest. Whilst it would be disproportionate to establish a separate review body, we seek assurances from the Government that the Code of Practice will set out clear guidelines to eradicate conflicts of interest.
Advance consent
56.The Law Commission’s proposals introduced the possibility of providing advance consent to care and treatment arrangements that would otherwise amount to a deprivation of liberty. In our previous report we considered that advance consent for care arrangements should be valid as long as safeguards are in place to verify the validity of this consent. We recommended formalising the arrangements for the giving of advance consent and establishing a monitoring mechanism to ensure that the arrangements put in place respect any stipulations the person concerned has made about his or her future care, and that proper records are kept. The records should be in writing, explaining the circumstances in which consent is given and, if the person to whom consent relates has not given the consent personally, the authority for giving that consent.
57.In the ‘recommendation by recommendation’ response to the Law Commission’s proposals’ published in July 2018, the Government set out its reasoning for not taking forward advance consent to care and treatment arrangements that would otherwise amount to a deprivation of liberty:
“Our engagement with stakeholders indicated a lack of support for including in the Bill provision for advance consent to being deprived of liberty, as they were unable to confidently envision a future scenario where they felt could ‘trust’ the advance decision for the specific future circumstances. Without robust monitoring processes, advance consent in some long stay settings could also be interpreted as people ‘giving up’ their protections and human rights”.51
58.It continues to be our belief that advance consent, with appropriate safeguards, could offer people greater choice and control over their future care and treatment arrangements. We suggest the following amendment:
Amendment 6
Insert the following new clause:
Advance decisions to consent to care and treatment arrangements
(1)The Mental Capacity Act is amended as follows.
(2)After section 26 insert -
26A Advance consent to care and treatment arrangements
(1)“Advance consent” means a decision made by a person after he or she has reached 18 and when he or she has capacity to do so, that the person consents to specific care and treatment arrangements if—
(a)at a later time and in such circumstances as the person may specify, a specified care or treatment arrangement is proposed to be carried out or continued by a person providing care or treatment, and
(b)at that time the person lacks capacity to consent to the care or treatment arrangements.
(2)A decision to give advance consent to specific care and treatment arrangements is only valid if:
(a)it is in writing
(b)it is signed by the person or by a representative in the person’s presence and by the person’s direction,
(c)the signature is made or acknowledged by the person in the presence of a witness, and
(d)the witness signs it, or acknowledges his signature, in the person’s presence.
(3)For the purposes of subsection (1), a decision may be regarded as specifying a care or treatment arrangement even though expressed in layman’s terms.
(4)The person may withdraw or alter an advance decision at any time when he has capacity to do so. In such circumstances, an alteration or withdrawal (including a partial withdrawal) must also be in writing in compliance with sub-section (2).
(5)A decision to give advance consent is not valid if there are reasonable grounds to believe that circumstances exist which the person did not anticipate at the time of giving the advance consent and, if the person had anticipated them, would have affected the decision to give consent.
32 Law Commission, Mental Capacity and Deprivation of Liberty, HC 1079
33 Mental Capacity (Amendment) Bill [HL], Schedule 1 (18) (2). The criteria for AMCP status will be set in regulation (Schedule 1, Part 4).
34 Directors of Adult Social Services, The Mental Capacity (Amendment) Bill – ADASS Statement, 4 September 2018
35 Care England, Conflict of Interest, 5 September 2018
36 Inclusion London, Briefing on the Mental Capacity Amendment Bill, A cross-sector representation of issues and concerns relating to the Mental Capacity (Amendment) Bill HL, and Age UK, Briefing: Mental Capacity (Amendment) Bill (HL), Committee Stage, September 2018
37 The Law Society, Parliamentary briefing: Mental Capacity (Amendment) Bill - House of Lords committee stage, 3 September 2018
38 Impact Assessment, Mental Capacity (Amendment) Bill, 29 June 2018
39 Impact Assessment, Mental Capacity (Amendment) Bill, 29 June 2018, para 8.10
40 Care England, Conflict of Interest, 5 September 2018
41 Letter from Lord O’Shaughnessy to Lords regarding points raised during the second reading of the Mental Capacity (Amendment) Bill, dated 24 July 2018
43 Department for Health and Social Care, Mental Capacity (Amendment) Bill, Illustrative person journeys under DoLS v Liberty Protection Safeguards, ANNEX B (as referenced in letter from Lord O’Shaughnessy dated 24 June 2018)
44 Impact Assessment, Mental Capacity (Amendment) Bill, 29 June 2018
45 Letter from Lord O’Shaughnessy to Lords regarding points raised during the second reading of the Mental Capacity (Amendment) Bill, dated 24 July 2018
46 A.-M.V. v Finland (App no 53251/13) [2017] ECHR 273.
47 Mental Capacity (Amendment) Bill [HL], Schedule 1, Part 4
48 Mental Capacity (Amendment) Bill [HL], Schedule 1 (18) (2)
50 Mental Capacity (Amendment) Bill [HL], Schedule 1, para 18
51 Letter from Lord O’Shaughnessy to Lords regarding points raised during the second reading of the Mental Capacity (Amendment) Bill, dated 24 July 2018
Published: 26 October 2018