Peers call for significant changes to DoLS replacement system to secure rights of service users

Stronger safeguards needed in Mental Capacity (Amendment) Bill to protect vulnerable individuals, say government critics in Lords debate

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The bill to reform the law on deprivation of liberty does not adequately secure the rights of people subject to restrictive care arrangements, members of the House of Lords have warned.

In Parliament’s first debate on the Mental Capacity (Amendment) Bill on Monday (16 May), peers questioned several aspects of the legislation, which would replace the Deprivation of Liberty Safeguards (DoLS) with a new system, the Liberty Protection Safeguards (LPS).

The LPS is designed to provide a much less bureaucratic system than DoLS for authorising health and social care arrangements that involve a deprivation of liberty to which a person cannot consent.

Junior health and social care minister Lord O’Shaughnessy opened the debate at the bill’s second reading in the Lords by saying the LPS would be less burdensome than DoLS on people, carers and local authorities, saving the latter an estimated £160m a year.

He said it would do this by making consideration of restrictions on people’s liberties a part of their overall care planning and eliminating repeat assessments and authorisations.

However, peers from across the House of Lords said several aspects of the bill risked weakening safeguards for people deprived of their liberty.

‘Most vulnerable’

Labour peer Lord Touhig, vice-president of the National Autistic Society (NAS), voiced concerns about the rights of autistic people under the bill’s proposals, insisting that many of the problems with the existing system had not been addressed.

He cited as particularly problematic the removal of the best interests assessment currently provided under DoLS, which ensures that arrangements to deprive a person of their liberty are in the individual’s best interests, necessary to protect them from harm and proportionate to the likelihood and seriousness of that harm.

Under the LPS, the equivalent requirement would be to establish that the arrangements are necessary and proportionate, one of three criteria that must be met for an LPS authorisation, the others being that the person lacks capacity to consent and is of “unsound mind”.

“The new criteria risk losing sight of what is best for the individual and what the individual wants,” said Touhig. “Let us be wary of enacting legislation that pays scant regard to the individual, in particular an individual who is perhaps the most vulnerable in society.”

Liberal Democrat peer Baroness Barker highlighted problems with the ability of bodies authorising LPS arrangements to rely on historic assessments of mental capacity, which may have been carried out for other purposes.

She said: “There is a danger that we might end up with decisions being made about a person’s capacity to make one decision which rests on information that was gathered for a wholly different purpose. That would not be right.”

AMCP uncertainty

Under the bill, the “responsible body” – local authorities in the case of social care arrangements and hospitals, clinical commissioning groups or Welsh health boards in health cases – must carry out a pre-authorisation review to determine whether the criteria for deprivation of liberty have been met.

In most cases, this would be carried out by a practitioner not involved in the person’s care arrangements. But where the person is objecting to the arrangements, the pre-authorisation review would be carried out by an approved mental capacity professional, a new role that would, in effect, replace that of the best interests assessor under DoLS.

However, some peers expressed confusion at both the purpose and importance of the AMCP role.

“This role replaces the best interest assessors’ role under the Mental Capacity Act,” said Baroness Greengross, a crossbencher and chief executive of ageing think-tank the International Longevity Centre – UK. However, the bill and the explanatory notes do not detail which professionals could act in this new role and how they interact with other clinicians.” She asked O’Shaughnessy for more information on the role.

Baroness Hollins, a crossbencher and former learning disability psychiatrist, warned it would be difficult to determine whether a person was objecting to their arrangements, the gateway to accessing an AMCP.

“The expertise and independence of this role is a welcome addition to the safeguards, but it seems that AMCPs will only be called upon if the individual objects. Who judges if the person is objecting?” she said.

This point was also made by Lord Touhig, who called for AMCPs to carry out the pre-authorisation review  “in all circumstances”.

Peers also raised concerns about the substantial added responsibilities placed on care home managers, compared with DoLS, a point made forcefully already by critics outside Parliament.

Changes from Law Commission proposals

The bill is based on proposals produced last year by Law Commission following a government-commissioned review of the law on deprivation of liberty in care, but the government has not included several of the commission’s proposals in the bill.

Barker added those working on the bill had “selectively picked” from the Law Commission’s proposals in place of accepting the “whole package of measures” that had been created to produce “a robust defence” for individuals.

Among Law Commission proposals omitted are applying the LPS scheme to 16- and 17-year-olds, reforming the best interests test under the Mental Capacity Act 2005 to place a greater weight on people’s wishes and feelings and reforming section 5 of the MCA to restrict the availability of the defence from liability for care staff acting in relation to a person whom they reasonably believe lacks capacity to consent to the actions concerned.

‘A backward step’

Sarah Lambert, head of policy and public affairs at the National Autistic Society (NAS), reiterated the arguments of those inside the House of Lords, saying: “NAS has substantial concerns that the bill, as drafted, does not put autistic or other individuals, who lack capacity, at the centre of decisions about their care.”

“Firstly, the bill moves away from the current position, where decisions should be made in someone’s ‘best interests’ and so risks losing sight of what is best for the individual, or what that individual wants.”

“Even though someone may lack capacity to make a decision about their living arrangements, their preferences or wishes should be a central factor in any decision about their lives. This makes it a backward step in protecting the rights people who lack capacity to consent to their care.”

“We will be working with members of the House of Lords and MPs as the bill passes through Parliament to make sure substantial amendments are made to secure the rights of autistic people and others.”

Changes ahead

The second reading will be followed by the committee stage of the bill, in which the House of Lords will subject the bill to line-by-line scrutiny. This is scheduled for the beginning of September.

With several questions regarding the bill and the government’s decision to stray from the Law Commission’s proposals, it is expected that changes will be forthcoming.

Lord O’Shaughnessy appeared to address this fact in his final comments, saying the government would “reflect on” whether changes could be made.

“It has been clear from this debate that there is still much work to be done to provide the right kind of reforms that we all want to see,” O’Shaughnessy said.

Some amendments have already been tabled to the bill by Labour shadow health minister Baroness Thornton. These would apply the reforms to people 16- and 17-year-olds and specify that the provisions must be read in a way which is compatible with Article 5 of the European Convention of Human Rights, which secures the right to liberty.

4 Responses to Peers call for significant changes to DoLS replacement system to secure rights of service users

  1. Graham Hennis July 21, 2018 at 2:41 pm #

    Having worked as a BIA since 2009 and gone through the Cheshire West impact to DOLS i have been following the proposed changes to the LPS scheme with interest. I have always maintained that the current scheme of DOLS does work and granted it could do with streamlining some of the parts but in my mind it is folly to completely change the system as even now nine years after DOLS came into being there are still professionals out there who do not understand the DOLS processs.

    Reading through various articles it seems to be the case that some of the protections given by DOLS are being diluted and the independent assessor is only called in after the person begins to object. And that bringing the AMCP in is at the discretion of the body authorising the Deprivation; the LPS scheme assumes that there will be a cost saving to the public purse, as with most schemes such as this there is a potential for the costs to be higher due to re-training, rebranding and potentially more challenges from people being deprived of their liberty. And if is that Local Authority Social Workers become the assessors and this work is added to their work load, will more Social Workers be required? And where is the independent element?

    The intentions are good in trying to trim some of the bureaucracy from the DOLS but most of it seems to be a backward step from giving the deprived person rights to challenge and as i said earlier there are several people out there who don’t know about DOLS and how it works; so to clear that confusion why don’t we introduce a new piece of legislation that will take another ten to fifteen years for people to get to know about it and what it does,.

    In terms of legislation the DOLS is still a baby and is still growing; and one wonders what will the process be to convert people already under DOLS to the new scheme?

    • Rita Mitchell July 27, 2018 at 10:45 am #

      Hi Graham
      As a DoLs trained IMCA since 2009 I could not agree more.
      I find it strange that the the new scheme is called Liberty Protection Safeguards yet it seems to me that it seeks to remove all the safeguards for the deprived person under the DoLS process.
      Pushing the responsibility onto the home managers !
      Who will look at the Baker J guidance and assist P to make an application to the COP ?

      Frankly it scares the pants off me
      Best to you and Tracey

  2. Laura Platt July 23, 2018 at 6:41 am #

    Nothing is mentioned about the role of the paid relevant person’s representative which I believe will likely be scrapped as part of these changes to save money.

    I work as a paid RPR in my spare time and it is we who provide scrutiny to care homes and we who determine whether someone is objecting to their placement.

    We visit vulnerable people, often with no family or friends or family and friends who live far away or don’t visit regularly for whatever reason, every 4-6 weeks and speak to them and their carers, we review their care notes and make suggestions on how their lives can be less restricted and referrals that may be required to improve quality of life.

    Sometimes we are the only person that speaks to them at length, the carers will not have time to sit and chat, as much as most would love to. Sometimes they can’t speak and therefore we review all their daily notes and their weight, appointments and activities and dummies whether they are having a good life here or not.

    Without the paid RPR, people with no family or friends who can’t speak for themselves will be left to rot. I have helped one person return home, two people move out of area to be close to family and helped three people challenge their DoLS in court and challenged the death by neglect of one gentleman which would otherwise have gone unnoticed. Who will do this in future?

  3. Terry McClatchey July 28, 2018 at 5:47 pm #

    As per the headline; informed Peers are right to call for significant changes to this Bill as it passes through Parliament. They and MPs in the Commons need support and encouragement to ensure this issue doesn’t get lost in more headline attracting Parliamentary business after the recess. Both the Law Commission and the Lords/Commons Joint Committee on Human Rights did a lot of constructive and non-partisan work on this topic to strike a fair balance between protection of vulnerable people and administrative deliverability. The Government has not yet offered any explanation for rejecting many of their positive proposals beyond a wish to push through something cheap and quick while political attentions are focused elsewhere.