Majority of practitioners opposed to key aspects of DoLS replacement proposals

Best interests assessors and other professionals express worry over lack of professional oversight of decision making within care homes and a weakening of people’s rights to challenge decisions

Mental Capacity Act
Photo: Gary Brigden

A majority of care professionals are opposed to major planks of the government’s proposals to replace the Deprivation of Liberty Safeguards (DoLS) with a new system for authorising deprivations of liberty in care, according to a survey.

Key areas of concern with the proposed Liberty Protection Safeguards (LPS) include levels of safeguards provided to service users and the enhanced role of care homes in making decisions about people who may be deprived of their liberty.

The concerns were raised in a survey run by Edge Training of over 900 people. Nearly half of respondents were best interest assessors (BIAs), with most of the rest being social workers, health professionals and independent mental capacity advocate (IMCAs).

Get up to speed with DoLS reform

Are you confused about what will replace DoLS? Then register now for this month’s Community Care Live London where two of the key people behind the reforms will explain what they are likely to mean for your practice. They are Tim Spencer-Lane, the lawyer who led the Law Commission’s project to review the law on deprivation of liberty that formed the basis of the government’s bill, and Sharon Egan, the Department of Health and Social Care who is leading on the reforms.

The results of the study were released two days before the House of Lords begins scrutiny of the Mental Capacity Act (Amendment) Bill, which would introduce the LPS.

Problematic proposals

The reforms are designed to tackle the huge demand on the current system and help local authorities save money by reducing the procedural requirements placed on authorities compared with DoLS, including in the following ways:

  • Under DoLS, all of the six required assessments must be carried out by specialist and qualified assessors. In relation to the three assessments required under the LPS, the only requirement is that the assessment of whether the person’s care arrangements are necessary and proportionate be carried out by a person who appears to have appropriate experience and knowledge.
  • Currently, all cases must be overseen by a BIA, a role designed to provide independent oversight of the process. Under LPS, the equivalent role, that of an approved mental capacity professional (AMCP), is only involved if the person is objecting to their care arrangements.
  • Under LPS, authorisations can be renewed for up to three years after an initial one-year period without fresh assessments if the responsible body is satisfied that the required conditions remain met. Under DoLS, when an authorisation expires, a fresh authorisation must be sought with a maximum duration of a year.

One of the major changes under LPS is the substantial role it would give registered managers in relation to deprivation of liberty cases in care homes. While local authorities would still be responsible for signing off authorisations, as now, care home managers would take responsibility for arranging the required assessments, deciding whether the authorisation conditions are met, consulting with those close to or caring for the person and determining whether the person is entitled to an IMCA. They would also have to decide whether the person was objecting to the arrangements that give rise to a deprivation of liberty and hence would need an AMCP. Currently, all of these roles are carried out by local authorities or best interests assessors.

The increased role for care home managers had already sparked concerns among professionals, about managers’ competence for the proposed responsibilities and risks they would face a conflict of interest by being responsible for safeguarding the rights of people deprived of liberty in the homes they run. These worries were reflected in the results of the survey. An overwhelming 86% of respondents disagreed with proposals to make care home managers responsible for conducting or delegating assessments within care homes, rather than qualified professionals such as social workers, nurses or occupational therapists.

“Anyone who has undertaken DoLS assessments knows care home staff have absolutely no clue about any of the assessments and do not have the time to carry them out,” said one DoLS mental health assessor who responded to the survey.

An IMCA said: “These people [care home mangers] are not independent and have a conflict of interest. There is also an immense lack of understanding about DoLS currently.”

In addition to apprehension over assessments, nine in ten people opposed government plans to charge care home managers with deciding whether it was in a resident’s best interest to have an advocate if they lacked capacity to request one.

Protection of rights

Potential issues surrounding people’s rights to challenge decisions also triggered concerns among respondents.

Under DoLS, the supervisory body (local authorities or Welsh health boards) must appoint a relevant person’s representative, usually a family member or friend, to represent and support the person through the process, including in relation to challenging arrangements. Yet under LPS, not everyone would be given a representative, who would be known as an ‘appropriate person’, though if they did not they would have an IMCA appointed instead.

Over 80% of respondents rejected the proposal not to have a representative appointed in all cases, while 77% of people disagreed with the fact that no additional protection would be afforded a person if a family objects to an authorisation under LPS. A number of respondents in their comments recognised the value of family members’ knowledge in conveying or relating the wishes of relatives.

A large proportion of respondents (90%) rejected the lack of a specific requirement to consult the person themselves about a proposed deprivation of their liberty. Statutory requirements within DoLS currently instruct BIAs to consult the person lacking capacity to establish their “wishes, beliefs and values”.

“It is every person’s right to have the opportunity to express their wishes regarding their care and the particulars of those wishes should be specifically recorded… LPS should absolutely and explicitly require consultation with the person being deprived of their liberty,” one social worker said.

Currently, the bill states that consultation is required with anyone named as a consultee by the person, carers, attorneys, deputies, IMCAs, appropriate persons or anyone with an interest in the person’s welfare, but the person themselves is not named as a consultee.

Key survey findings

  • 912 respondents: DoLS best interests assessor (43%), social worker who is not a BIA (8%), IMCA (7%)
  • 90% of people opposed plans to give care home managers responsibility for deciding if a resident needs an advocate if they lack capacity to request one
  • Respondents were split on whether the legislation should define what constitutes a deprivation of liberty, with 40% agreeing and the same proportion disagreeing
  • 71% of people rejected the use of the term “unsound mind” as one of the assessment criteria
  • 91% of respondents disagreed with proposals not to directly consult with an individual about being deprived of their liberty.
  • 70% of people agreed with plans to allow LPS be applied to any care setting

A full summary of the LPS survey results can be found on the Edge Training LPS website.

‘Serious questions’

Director of Edge Training and survey author Steven Richards said respondent numbers reflected the level of interest surrounding the proposals.

“To get over 900 responses, which is considerably more than the Law Commission got during its four-month consultation [on proposals to reform deprivation of liberty law on which the government’s are based] (583 written responses), was a complete surprise. I believe this reflects the interest and concerns people working in social and healthcare settings have about the proposals.”

“Out of 17 questions on key areas of the bill, people disagreed with 10 of them – strongly in most cases. This raises serious questions about the changes made by the Department of Health and Social Care to the Law Commission’s original recommendations.”

There are a number of respects in which the government has departed from the commission’s recommendations. For example, the commission’s system would have applied to people aged 16 and over, not 18, as in the government’s case; the commission also proposed wider changes to the Mental Capacity Act to increase the weight of people’s wishes and feelings in best interests decisions and limit the freedom from legal liability for actions done by care staff towards people who lack capacity to consent.

Richards also hoped the results would assist discussions at the House of Lords where peers will meet on Wednesday (5 September) to start scrutinising the legislation in detail at the bill’s committee stage.

“For the legislation to be effective in practice and actually safeguard people, the views of those working in the field are vital,” he added. “This survey provides a robust evidence base for members of the House of Lords and Commons as they debate the bill and consider amendments.”

Positive feedback

Despite disagreements with the majority of proposals, respondents did recognise some areas of progress made by the government.

Over two thirds of people (70%) agreed with plans to allow LPS be applied to any care setting, including care homes, hospitals, supported living and domestic settings. DoLS just applies to care homes and hospitals.

“It is the care plan, not the setting, that confines a person and it is good that multiple settings will be dealt with in one authorisation,” a BIA said.

In addition, over half of respondents (52%) agreed with proposed changes  which would see a deprivation of liberty apply to harm to self and/or others, not just harm to self as it is under DoLS.

4 Responses to Majority of practitioners opposed to key aspects of DoLS replacement proposals

  1. Terry McClatchey September 3, 2018 at 12:12 pm #

    It’s an unfair generalisation that “care home staff have absolutely no clue about any of the assessments”. Some do. It is however clear that there is a widespread low level of awareness about the MCA in care homes and hospitals. It is very high risk to leave decisions of this magnitude to the chance of whether a care home or hospital manager may have had a half-day training in issues that test our most senior and experienced judges. The Bill goes into Committee Stage this week. We have to hope that parliamentarians are not too distracted by other “big news” matters that take their focus off important protections for vulnerable persons.

  2. Phill Wheatley September 4, 2018 at 9:03 am #

    After LPS implementation, Safeguarding referrals and enquiries will i am sure, increase.

  3. Caroline Goodfellow September 4, 2018 at 5:59 pm #

    As a retired Social Worker I share the concerns about these changes. Until my sister’s recent death I was the DOLs Authorised Representative/ Advocate for my sister in a Care Home. My sister had Learning Difficulties and Deaf Blindness that meant she lacked the capacity to communicate or understand what was happening to her. There were a lot of battles with the home about her needs and also the home failed to refer my sister through to the DOLS team until CQC forced them to do so following an inspection.
    I would have had no confidence in many Registered Managers being sufficiently clued up or motivated to appropriately refer residents for an advocate. in many cases I can see this would be down to ignorance, disinterest or conflict of interest. Also many Managers fail to “walk the walk” and don’t know their residents sufficiently..
    There must be some happy medium here as i can see how the current system of assessments is too labour intensive.

  4. Whistleblower! Vote E dnas law. September 7, 2018 at 1:15 pm #

    I totally oppose any suggestion that care home managers be given thevresponsibility of managing the LPS. There is very evident low level awareness about the MCA in care homes and a total lack of independant or impartial objectivity. I would NOT have confidence in many Registered Managers being sufficiently clued up or motivated to appropriately refer residents for an advocate. Their is a complete lack od openness and transparency and conflict of interests. Relatives who raise concerns in line with dols assessments and or safeguarding are victimised excluded and made the scapegoat by care home management who abuse their power and authority by misusing independant MCA to bring a section 21a as the vehicle via which whistleblower complainants whose relative is the subject of a dols – to drive their own reprisal agenda to exclude the relative from visitation rights in exchange for retraction of their eviction notices served on vulnerable resident.

    This institutionalised defensive culture within private care homes where the care home managers totally lack openness and transparency and make threats of and actual serve notice on vulnerable residents because their former main carer or relatives raise concerns in line with safe guarding HAS to cease and care home managers held to account for these abuses of human rights within the MCA processes. I speak from personal experience as a whistleblower who raised concerns in relation to my father’s care as his RPR in line with safeguarding concerns, yet having acted in line with my duty of care and candour as a daughter former main carer and registered nurse have been excluded from in home visitation rights to my own father for 2 years !! despite marked deterioration.
    He has also been denied chc assessment for a 2 year period also – declined in 2016 and now again in 2018. Private care home providers “the so called ultimate landlord ” are exactly that ! a law unto themselves and are riding rough shod over the MCA dols assessors / safeguarding / art social care and their own regulators CQC in their abuse of power and authority. So for God sake don’t put the vulnerable adults who have lost mental capacity at the mercy of these ruthless managers whose priority is first their profit margins long before the safety and well-being of their vulnerable residents.

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