Government stands by plan to extend care home role in deprivation of liberty cases despite heavy criticism

Minister issues robust defence of proposal for care home managers to arrange assessments under DoLS replacement scheme in face of practitioner and peer opposition

The government has issued a stout defence of its plan for care home managers to arrange assessments under the planned replacement for the Deprivation of Liberty Safeguards (DoLS) following heavy criticism from practitioners.

A substantial majority of best interests assessors (BIAs) and other social care and health practitioners expressed their opposition to the proposals in a survey by Edge Training issued this week, and this criticism was echoed in Parliament this week.

In a House of Lords debate on the Mental Capacity (Amendment) Bill, which would introduce the Liberty Protection Safeguards (LPS) to replace DoLS, several peers raised significant concerns about the proposed role for registered managers on the grounds that they would lack the skills and independence to perform it.

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.

However, junior health minister Lord O’Shaughnessy issued what he described as a “robust” defence of the model, saying it built on the existing requirements on care homes under DoLS and that there would be sufficient checks on the way managers performed their role.

Enhanced role for care homes

While councils would sign off arrangements giving rise to a deprivation of liberty in care homes, registered managers would take responsibility for arranging assessments to determine whether the authorisation conditions were met: that the person lacked capacity to consent to the care arrangements and was of unsound mind, and that the arrangements were necessary and proportionate.

Managers would then have to report to the local authority on whether the authorisation conditions were met, consultation with those close to the the person had taken place and whether the person was entitled to an advocate.

Under DoLS, all these roles are carried out by a local authority or a BIA independent of the person’s care. In addition, under LPS, the care home manager would need to determine whether the person was objecting to their arrangements – in which case the local authority would send an approved mental capacity professional (AMCP) – a role that would replace that of BIA – to assess the case.

The two key criticisms of the LPS plans – voiced by practitioners and peers alike – are that care home managers lack the skills and Mental Capacity Act 2005 (MCA) knowledge to perform this role and that they would face conflict of interest in doing so. This is because their priority as manager would be to ensure the smooth running and financial health of the home, rather than take decisions that may see a resident placed elsewhere or subject the home to greater scrutiny.

Peers also pointed out that the local authority – in its role as the ‘responsible body’ for the deprivation of liberty – would struggle to determine whether any report from the care home manager that the conditions for a deprivation of liberty were met and the person was not objecting could just be signed off or needed further scrutiny.

‘Conflict of interest’

“The responsible body makes its decision having regard to the report by the care manager and supporting evidence, but there is no requirement that I can see to have regard to other evidence,” said Labour’s shadow health spokesperson, Lord Hunt, who had raised particular concerns about the care home role before this week’s debate.  “Although the responsible body must be satisfied that the care manager has been through the process in the bill, the impact assessment suggests that this will be merely a desktop exercise.”

He added: “At the moment, on the face of it, there is a massive conflict of interest with no external checks if the manager reports that the person is not objecting.”

Hunt also pointed out that the bill’s impact assessment said that the training required for care homes managers in familiarising themselves with the new policy was just half a day.

“I know there are some fantastic care homes, but one in five has no registered manager in post, despite this being a mandatory requirement, while turnover is estimated to be a massive 27% – and they only need half a day’s training. That is simply not believable.”

However, O’Shaughnessy rejected the criticisms, saying that the role set out for care homes under LPS built on what they were doing under DoLS as managing authorities whose functions included making applications for a DoLS authorisation where it was likely that a person would be deprived of their liberty in their homes.

“Care homes are already required to make applications and consider capacity and restriction…This is not an entirely new function that has been developed – rather, it is recognising actions that are already taking place and making sure that they are recognised while retaining proper opportunity for escalation as well as independent accountability,” he said.

Social workers will do assessments

O’Shaughnessy accepted that there would be a need for training before implementation beyond that set out in the impact assessment and that government would work with the sector to put this in place. However, he said that the vast majority of assessments would not be carried out by care home managers –  the mental health assessment would be carried out by GPs or psychiatrists, the capacity assessments by social workers, nurses or speech therapists and the necessary and proportionate assessment by any of these professionals “or other suitably experienced and knowledgeable healthcare staff”.

“The point I am trying to make is that the people who are carrying out these assessments may have been commissioned by the care home manager but in the vast majority of cases will not be the care home manager; rather, they will be people with the appropriate skills, knowledge and professional expertise to carry these out properly,” he added.

He also stressed that local authority’s role as responsible body in care home cases would “ensure the necessary oversight of the system” by “authorising every single assessment and scrutinising the applications before authorising them”, while families and advocates would be able to raise concerns about care home assessments with the local authority to trigger greater scrutiny.

While O’Shaughnessy said he was being “robust…in defence of the model”, he admitted the government needed to do more to explain its case as to why this was the right way forward. He also said that the code of practice that would be produced to accompany the legislation would provide guidance for local authorities on signs of concern to look out for in relation to care home assessments.

Fundamentally, he said the care home role was about creating a more streamlined system to relieve existing burdens on local authorities in order to ensure that the  substantial backlog of unprocessed cases under DoLS was not replicated under the new regime.

The bill will next be considered by the Lords on 15 October. Like this week’s debate this is part of the committee stage of the legislation’s progress through the House of Lords, in which peers scrutinise the bill in detail and propose and debate amendments to it.

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4 Responses to Government stands by plan to extend care home role in deprivation of liberty cases despite heavy criticism

  1. Anon September 8, 2018 at 9:13 am #

    The LPS represents the cheapest way the UK govt can comply with Article 5. With the financial disaster that is Brexit just around the corner, you might think it reasonable, but swerving the cost of securing human rights for all has been government motivation since Bournewood. Cheshire West stopped that… but the DoLS scheme was not designed to deal with the numbers of referrals that followed that.

    So care home registered managers (and ward managers?) will get half a day’s training in this and when it goes wrong, government will be absolved; they have told care home managers and ward staff what to do, not government’s fault if they don’t do it.

    In practice, I expect it will then fall on the regulator and on local authoritys’ duties under s42 Care Act to challenge failures to uphold human rights.

    Predictable outcomes then…?

    1. Many providers and ward staff don’t get the basics of the MCA now. I would ask any care home manager offended at reading this, if they know the 2 stage test, or tell me how many of their staff know and can apply the 5 Principles – most can’t, let alone understand the 3 elements of DoL. Half a day’s training? Why didn’t we think of that, half a day’s training, blimey. If we had known that was all it would take….

    2. Some ward managers and care home managers currently refer for DoLS in order to have the capacity assessment completed by another party. Providers SHOULD assess capacity before referring of course, but this is not helped by some CQC inspectors telling them to make referrals for everyone in their care (and breaching Regulation 11 Health and Social (Regulated Activities) Regulations 2014 in the process

    3 Some care homes and ward managers will have no incentive for reporting a person in their care is in need of dol authorisation, independent advocacy or if the person is objecting to the poor care they are receiving.Why would they? It is becoming more difficult for some providers to fill beds, why shout about someone who wants to leave?

    4. Other care home managers will charge a premium for all this work. To do a DoLS assessment properly takes a skilled BIA the best part of a week to do it right, speaking with the person at least twice to maximise decision making capacity etc. This cost will be transferred to third party top-ups or will go back to commissioners.

    5. If no extra money is forthcoming, coupled with non-compliance issues picked up by the CQC and safeguarding, a great many care homes will close. This means people will have to move. We all know that when care homes for older people close, some people die as a result of the upheaval. The same will happen when the regulator sees providers not complying with the LPS.

    6. Government will say it’s not their fault providers have not complied with human rights law. To be fair, this is right enough; MCA and human rights have never been embraced by many private sector providers and NHS staff but this is not the way to deal with that failure. The MCA radically challenged those working in health and social care and the expectation was everyone would just change their practice overnight. 11 years on and it still hasn’t happened. But the cost of proving this point will be too high for many service providers and users. We all look to government to lead us – this is not leadership to resolve the problem, it is more like fly tipping – dumping the problem elsewhere and then clearing off.

  2. Roger Hargreaves September 10, 2018 at 3:05 pm #

    It wasn’t a “robust defence” at all, as in making it the Minister had to concede one of the opposition’s main concerns, that in most cases care home managers haven’t got “the appropriate skills, knowledge and professional expertise to carry (assessments) out properly”, and said that they would instead have to “commission” them from professionals with “appropriate expertise and knowledge as required by case law”. That in turn knocks out the government’s main argument for these proposals, that doing the assessments in-house rather than outsourcing them would help embed good MCA practice in the care home sector, and raises the questions, where are the managers going to find these professionals, and who’s going to pay them ? And why should they bother, as if they submit assessments which the responsible body deems inadequate, it will have no choice but to send its own assessors at its own expense.

  3. Guilsfield September 11, 2018 at 8:35 am #

    The team which drafted the Bill have made several categorical errors. Care home managers are not engaged in similar activities already. DoLS application forms are generally sketchy, scrappy documents lacking in quality and curiosity about alternatives generally provided with a rather grudging, ‘if you say so’. Home care plans are not systematic analyses of liberty and the potential for enhanced freedoms but prosaic documents listing care tasks. For all the claims of consultation, care home managers (the few who have heard of the proposals anyway) do not want these responsibilities.

  4. Danny September 12, 2018 at 11:40 am #

    Care Home Managers “prevents” innocent Families from seeing their loved one’s and works alongside inept LA’s therefore, how anyone trust them? Also, where will they find “truly independent” assessors? It is a farce if you ask me.