Justification for Liberty Protection Safeguards care home plan unclear as bill enters critical phase

Researcher Lucy Series says the Department of Health and Social Care has not answered her requests for information on its plans to give care homes a central role in the DoLS replacement scheme

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By Lucy Series, 

With the Mental Capacity (Amendment) Bill a week away from the penultimate stage of its passage through the House of Lords, major concerns about the Liberty Protection Safeguards (LPS) – which the bill would introduce to replace the Deprivation of Liberty Safeguards (DoLS) – still exist.

An estimated 300,000 people in care homes, hospitals, supported accommodation and even domestic settings could be affected by the potential changes, with campaigners, professionals and sector bodies all criticising numerous aspects of the bill.

In September, I put in a Freedom of Information Request (FOI) to the Department of Health and Social Care (DHSC), asking for more information about the bill.

Behind my request was a desire to know whether the DHSC had undertaken an impact assessment of alternatives to the contentious ‘care home arrangements’, under which care home managers would be responsible for arranging assessments and other critical functions in relation to people who may be detained. I also wanted to ask if the department had estimated how many people could become detainable on grounds of ‘risk of harm to others’, who are not currently detainable under the DoLS.

At the end of last month, the department replied to my request for more information, saying it would need a further 20 days (having already had 20 days) to consider whether it was in the public interest to disclose whether it had carried out these impact assessments and what it had found.

And, although I have a lot of experience requesting information from government departments, I have never encountered something like this before.

Concerning care home arrangements 

From everyone I’ve spoken to so far, the care home arrangements have provoked the greatest concern around the bill.

Conflicts of interest for care providers, a lack of resources and skills to undertake assessments, and care home managers having inadequate information about less restrictive alternative living arrangements to support decisions and assess the necessity and proportionality of arrangements have all been listed as particular areas of anxiety.

Yet, we have no clear answer to why the Law Commission’s original proposals, which would have seen the responsible body – a local authority in care home cases – arrange key assessments, were not followed.

More on Liberty Protection Safeguards:

One of the potential difficulties with giving responsibility for arranging assessments to the responsible body is that they may not always be able to rely on their own assessments under the Care Act 2014 or similar, and for self-funders in particular they may have to arrange fresh assessments.

It strikes me that this could carry a price tag, although I cannot find detailed reference to this specific issue in the Law Commission’s proposals. It would be useful to know what that price tag is in appraising whether there are alternative policy choices to the care home arrangements.

When I submitted my FOI to ask if the department had undertaken an impact assessment of this alternative policy choice, the response I received was most curious. It read:

“The department’s consideration of the balance of the public interest with regards to your request is not yet complete and requires further time to complete in line with Section 10(3) of the FOI Act.”

Usually, requests for information must be complied with within 20 days of the request, but public bodies may request further time if they need to consider if it is in the public interest to disclose the information.

In most cases, the public body would inform whether it even held the information, but in this case the department neither confirmed nor denied that it held the information. It would also be required to release any statistical information it holds if a final policy choice had been made, implying this section of the bill is still under review.

To my mind, there are several possibilities in play here; the first is that an impact assessment has been done, but for some reason it was not included in the assessment published with the bill.

An alternative is that the department has not conducted an impact assessment of whether the responsible body could take on the role.

New ‘risk to others’ criterion 

When requesting information from the department, I also asked the government for estimates of how many people, who are not currently detainable under the DoLS on grounds of ‘risk of harm to others’, might become detainable under the LPS.

Because ‘best interests’ is not a criterion for detention under the LPS, this raises the possibility that the bill will permit detentions in circumstances that would not currently be lawful under the MCA.

When ‘best interests’ is not part of the basis for the detention, this in turn limits the ability of attorneys and deputies to block the detention under section 6(6) of the Mental Capacity Act, which prevents a person from making a care or treatment decision under section 5 that conflicts with a valid decision by an attorney or deputy. This is despite the junior health minister in the Lords, Lord O’Shaughnessy, relying heavily on section 6(6) to justify  removing the Law Commission’s proposed clause that would have made clear that responsible bodies cannot authorise detention where the attorney or deputy objects.

This could potentially apply to people whose general care is arranged on the basis of best interests, where an alternative argument could be made that the restrictions are necessary on grounds of risk to others.

It also creates the strange situation that responsible bodies would be able to authorise deprivation of liberty in circumstances where the Court of Protection itself cannot.

The Court of Protection would still have to review these cases when they are appealed, and Court of Protection judges have expressed concern about their role in reviewing detention which is essentially on public protection grounds, not within the traditional remit of the MCA.

Measuring the impact of changes 

One of the key questions of this debate is how many people this change could affect. The Law Commission appeared to believe this would affect a small number of people, based on their consultation about those currently at the fringes of the DoLS.

Yet, one of the possibilities the Law Commission did not discuss is that if you create a new power to detain on grounds of risk to others, which is contained within a vehicle that is light on ‘formalities’ or safeguards, it may become an attractive alternative to mechanisms like supervised community treatment under the Mental Health Act 1983 or for the management of populations who are not currently considered in relation to DoLS.

I think this requires extremely careful consideration. So, I also asked the government for its estimates of how many people could be affected by this.  Importantly this was not part of the Law Commission’s consultation, because they consulted on deprivation of liberty on grounds of ‘risk of harm to others’ within the broader envelope of ‘best interests’.

For me, the bill has cut the tether to best interests, and we don’t know where it will land.

This article is an edited version of a post on the Small Places blog, written by Dr Lucy Series, lecturer in the school of law and politics at Cardiff University. We are grateful to Lucy for allowing us to republish it here. 

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