By Luke Haynes and Mithran Samuel
The government will amend its planned replacement to the Deprivation of Liberty Safeguards (DoLS) so that it applies to 16- and 17-year-olds, not just those over 18, a minister has confirmed.
Junior health minister Lord O’Shaughnessy pledged to amend the Mental Capacity (Amendment) Bill so that the proposed Liberty Protection Safeguards applied to young people aged 16 and 17, in a House of Lords debate on the bill yesterday (15 October).
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The government had been criticised for excluding 16- and 17-year-olds from the scheme, particularly as they had been included in 2017 Law Commission proposals to replace DoLS that form the blueprint for the government’s plans.
The change was the firmest commitment to alter the bill made by O’Shaughnessy in yesterday’s debate, part of the committee stage in the Lords that involves line-by-line scrutiny of the proposed legislation.
Requirement to consult
However, O’Shaughnessy also pledged changes to address criticisms made by peers and professionals that the bill did not include an explicit requirement for a person to be consulted about proposed care arrangements that would involve a deprivation of their liberty. This is despite the fact that there are explicit requirements to consult carers, deputies, attorneys, advocates, anyone nominated by the person as a consultee and anyone interested in the person’s welfare, and that the purpose of such consultation was to ascertain the wishes and feelings of the person who would be detained.
The government has argued that the ‘anyone interested in the person’s welfare’ category includes the person who would be subject to the arrangements but the lack of an explicit requirement has caused substantial concern.
In yesterday’s debate, O’Shaughnessy said it was “essential that that person’s wishes and feelings about proposed arrangements be at the heart of the model, so we will ensure that the bill reflects this”. It is not clear as yet what this will mean in terms of amending the bill.
Despite a number of amendments having been tabled for debate yesterday, no changes were made to the bill as all amendments were withdrawn.
Care home criticisms
However, the government continued to come under significant criticism for its proposal to give care home managers responsibility for critical roles in relation to potential deprivations of liberty in their homes, including: arranging the required assessments and determining whether the three conditions for a deprivation of liberty have been met; ensuring that the necessary consultation has taken place to determine the person’s wishes and feelings; establishing whether the person is objecting to the arrangements and, therefore, whether an approved mental capacity professional (AMCP) should scrutinise the case; and determining whether the person is entitled to an advocate. They would then report on these points to the local authority who would be responsible for signing off the deprivation of liberty arrangement or not.
The plans have been criticised on several grounds:
- that care home managers lack the requisite Mental Capacity Act knowledge to fulfil the roles and there is seemingly no budget allocated to fund the required training;
- that care homes would lack the funding for their managers to carry out the roles;
- that managers would face a conflict of interest in being responsible for the smooth running and financial health of the home, on the other hand, and for safeguards for individuals that may result in the home being subject to greater scrutiny and to residents moving out, on the other;
- that the responsible local authority would not be able to identify when a care home manager’s report needed further scrutiny and when it could be simply signed off to authorise the deprivation of liberty.
In response, the government has argued that the proposals are designed to streamline the system and reduce duplication, but also sought to reassure critics by saying that care home managers would not carry out the three core assessments: whether the person had capacity to consent to their care arrangements; whether they were of ‘unsound mind’ and whether the arrangements giving rise to a deprivation of liberty were necessary and proportionate. Instead, the manager would commission them from social workers or health professionals or, as the bill allows, rely on assessments already carried out by such professionals.
O’Shaughnessy sought to provide further reassurance in yesterday’s debate by suggesting the government would amend the bill to make clear that care home managers would be precluded from carrying out pre-authorisation reviews.
These are designed to assess whether the conditions for depriving a person of their liberty have been met. In cases where the person were objecting, these would be carried out by the AMCP but the bill is currently silent on who should carry out the review in other cases, besides saying that the reviewer should not be involved in providing day-to-day care or treatment to the person.
“It would not be appropriate for care home managers to complete pre-authorisation review,” said O’Shaughnessy. “I assure the committee that we will make sure that the bill reflects this.”
He said the government’s intention was that only the responsible body – a local authority in the case of care home arrangements – or an individual acting on its behalf, would carry out the pre-authorisation, and it would most probably be done by senior social workers in these cases.
Removal of ‘unsound mind’ terminology
The minister also signalled that the government would amend the bill to remove the reference to a person being “of unsound mind” as being one of the three requirements that must be met before a person is deprived of their liberty. Though this term matches that used in the European Convention on Human Rights – on which all deprivation of liberty law is based – it is widely seen as stigmatising and inappropriate. The government had previously expressed concern that changing the term would open up a gap in the law that may see some people excluded from the protection of the safeguards.
However, O’Shaughnessy said yesterday: “I know that there is a great concern that the language is inappropriate and that creating a new definition might create a gap, but, having looked at this further, we think we would be able to change this language and carry out various other work to reduce the gap to a minimum.”
He also said the government would strive to develop a definition of a deprivation of liberty – something called for by Parliament’s joint committee on human rights in a report in June – to go on the face of the bill, in regulations under the bill or in the code of practice that will be developed to accompany it.