Increased role for care homes in DoLS replacement model risks conflicts of interest, warn experts

Mental Capacity Act (MCA) experts have criticised the government’s proposals to give care home managers increased responsibility over deprivation of liberty cases in legislation to reform the law in this area.

As Parliament holds its first debate on the Mental Capacity (Amendment) Bill today, critics warned that proposals to give care home managers duties currently conducted by best interests assessors (BIAs) – a position which would be been scrapped under the proposed model – would create a “conflict of interest”.

This is because care homes may be reluctant to identify issues that may leave themselves open to greater scrutiny or possible legal liability.

The bill would replace the Deprivation of Liberty Safeguards (DoLS) with a new scheme, dubbed the Liberty Protection Safeguards, to authorise arrangements for people’s health and social care that involve a deprivation of liberty to which they lack capacity to consent. It is designed to relieve pressures on an overloaded system, with DoLS cases soaring from 13,000 in 2013-14 to 217,000 in 2016-17, under the impact of the Supreme Court’s Cheshire West judgment.

Despite “broadly accepting” the Law Commission’s proposals to replace the current system, issued last year,  the government has been criticised for moving away from the commission’s recommendations, in particular by proposing to give care homes mores responsibility over cases.

Changes

Under the DoLS system, supervisory bodies – local authorities or Welsh health boards – are responsible for arranging the assessments that determine whether a deprivation of liberty will be authorised, with the process co-ordinated by a BIA, typically a social worker. The BIA also assesses whether the person is or is likely to be deprived of their liberty and, if so, whether this is in their best interests, necessary to protect them from harm and proportionate to the likelihood and seriousness of that harm.

Under the Law Commission’s proposals, the assessment and authorisation process would still have been the responsibility of a local authority, in relation to social care settings, and of hospitals or health commissioners in relation to health cases.

However, while the government’s bill retains this approach for cases outside of care homes, within homes it would give the responsibility for arranging assessments and co-ordinating the process to the manager. The manager must then confirm, in a statement to the local authority, that:

• the arrangements give rise to a deprivation of liberty;
• the person lacks capacity to consent;
• the person is of ‘unsound mind’, meaning that they have a mental health disorder;
• that the arrangements are necessary and proportionate;
• whether the person is objecting to the arrangements;
• that consultation with named people close to the person has taken place;
• whether an independent mental capacity advocate should be appointed.

It is then up to the local authority to determine whether a deprivation of liberty should be authorised.

Lucy Series, lecturer at Cardiff University’s school of law and politics, whose research focuses on mental capacity issues, told Community Care it was “particularly concerning” that care home managers where now being tasked with understanding complex legal frameworks.

“In addition to writing a mental capacity assessment, providing medical evidence of unsoundness of mind and writing a statement explaining why the arrangements are necessary and proportionate, care home managers would have to provide a statement explaining their opinion as to whether a resident needs an appropriate person or independent mental capacity advocate (IMCA)”, she said.

‘Legal imperative’

“The decision around whether a person needs an advocate or representative and who that person should be is not actually about whether that person has any friends or family.

“It’s actually about whether that person has anyone who’s willing to take [their appeal] to court on their behalf. And, I’m not sure that care home managers are going to understand that legal imperative,” she said.

“I also think, if people are taking this to court, they don’t want to be in a care home and there’s a conflict of interest there around being prepared to help someone who’s going to sue you.”

Like Series, Steven Chamberlain, who is an independent BIA and trainer, also identified a potential conflict of interest within the government’s proposals around the role of care homes.

“Care home managers being the lead of so much of [the assessment] is a huge area of conflict of interest… especially if you’re wanting them to do things which [will] increase the scrutiny on the care home,” he added.

Chamberlain also queried care home managers’ competence to carry out assessments in the way BIAs currently do, saying it would take a “Pacific Ocean’s-worth” of training for them to be able to complete assessments confidently.

Underestimating the role

“It appears to, whether it’s deliberate or by accident, totally misunderstand the different roles there. In my experience of working as a best interests assessor at a large number homes, their care plan at best is a day-to-day list of things you do to keep someone safe, such as moving and handling,” he said

“It’s nothing about the least restrictive option, whether it’s necessary or what risks they would run if they were back in the community – all the things that are currently being done in best interests assessments,” Chamberlain added

“I think they’re significantly underestimating the competence that is needed to create a document that will ensure people’s human rights are being met and can be authorised. They’re seriously underestimating the training that people will need,” he said.

Unwanted responsibility

Rachel Griffiths, a Mental Capacity Act consultant, spoke about the workload impact that would be felt by care home managers.

“I was very surprised to see the enormous responsibility given to care homes, this was not pre-figured in any of the Law Commission’s recommendations or their consultation, it’s just appeared out of leftfield.”

Griffiths added the decision to give care home managers more powers would “not be welcomed” by managers themselves and highlighted that BIAs had specialist training to carry out the task.

“It’s giving care home managers responsibility they certainly have not been asking for and the level of training they would need and the level of confidence as well as competence to do this properly. They’re busy all the time anyway. It’s a hell of a burden to put on them”.