The bill to replace the Deprivation of Liberty Safeguards (DoLS) with the Liberty Protection Safeguards (LPS) has been approved by the House of Lords after peers made significant changes to the government’s original proposals.
The majority of changes made to the Mental Capacity (Amendment) Act were designed to address concerns that the original bill failed to provide sufficient safeguards for people deprived of their liberty or sufficiently consider the wishes and feelings of people and their families.
With the bill due to have its first debate in the House of Commons tomorrow (18 December), we review the major changes agreed by the Lords.
Reducing role of care home managers
One of the main sticking points of the original proposals was the significant role given to care home managers under LPS in cases in their homes
It was originally proposed that care home managers would be responsible for arranging assessments to decide whether the three conditions for a deprivation of liberty authorisation had been met: that the person lacked capacity to consent to their care arrangements and had a mental disorder, and that the arrangements were necessary and proportionate.
Managers were also tasked with confirming with the responsible body – which in the case of care homes would be the local authority – if the authorisation conditions had been met, if an independent mental capacity advocate (IMCA) should be appointed and if the person were objecting to their care arrangements. This is significant because anyone who objected would be entitled to have their case reviewed by an approved mental capacity professional (AMCP), a practitioner with specialist training in the Mental Capacity Act (MCA) similar to the best interests assessor (BIA) under DoLS.
Concerns over managers’ skills and knowledge
Peers challenged the initial proposals, questioning whether care home managers would have the required skills and knowledge to carry out what would be, in effect, the responsibilities performed under DoLS by BIAs, who have specialist training in the MCA.
They also questioned why these responsibilities would not be carried out by local authorities in their responsible body capacity, as proposed by the Law Commission in its 2017 report on reforming deprivation of liberty law that forms the blueprint for the government’s proposals.
Professionals also expressed significant concern about this aspect of the bill. A survey of over 900 people conducted by Edge Training and Community Care found that 86% of respondents disagreed with proposals to make care home managers responsible for conducting or delegating assessments.
In addition, giving managers the responsibility to alert local authorities if they judged an IMCA was required also worried peers, who warned that care home managers would act as gatekeepers and people entitled to advocates would not have access to them.
Local authorities given a choice
In response to these concerns, the government brought forward amendments to give local authorities the option of giving these responsibilities to the care home manager or undertaking the responsibilities themselves. This would act as a check to ensure that the care home was suitable to oversee the process.
The bill was also changed so that managers would no longer be responsible for notifying a local authority if an IMCA should be appointed.
Instead, the amended bill specifies IMCAs would be automatically appointed where there was no appropriate person – an informal advocate who would represent and support the cared-for person but would not be involved in their care, such as a family member – unless it would not be in the person’s best interest to appoint an IMCA.
Conflict of interest
Another government amendment agreed by the Lords would ensure that care home managers could not commission anyone with a “prescribed connection” to the care home to carry out assessments. This is designed to prevent the assessor being insufficiently independent from the home.
It responds to criticisms from peers and professionals that managers would have a conflict of interest between ensuring the smooth running and financial health of the home, and their responsibilities under LPS, which may require decisions that would see a resident placed elsewhere or subject the home to greater scrutiny.
The third condition originally stated that the arrangements for a deprivation of liberty must be “necessary and proportionate”. However, peers and professionals expressed concern that this test weakened the protections for an individual in comparison to DoLS, as it was not related directly to the cared-for person’s best interests.
Peers changed the bill to state that a deprivation must be must be necessary “to prevent harm to the cared-for person” and proportionate “in relation to the likelihood and seriousness of harm to the cared-for person”.
The government has confirmed it would not seek to change or overturn the amendment in the Commons.
‘Unsound mind’ terminology removed
The second condition for a deprivation of liberty, which originally stated that the person “is of unsound mind”, was also changed, following government amendments to state that the person must have a mental disorder, in line with the Mental Health Act 1983.
Despite the government insisting it had used the term “unsound mind” to bring LPS in line with article 5 of the European Convention on Human Rights, on which all deprivation of liberty law is based, it responded to criticism that the term was outdated and stigmatising in making the change.
Increased role for approved mental capacity professionals
Peers also criticised a lack of independent professional oversight over the process with the replacement of the BIA role, which oversees all cases under DoLS, with that of the AMCP, which would only review certain cases under LPS.
The bill originally stated that an AMCP would carry out a pre-authorisation review, to determine whether the conditions for an LPS authorisation had been met, where there was a reasonable belief that the person was objecting to the arrangements. Otherwise the pre-authorisation review would be carried out by a practitioner who need not have specialist training.
The decision not to have an AMCP review in every case was flagged as a potential problem by peers and professionals, who said that there would be insufficient protections for people who were not evidently objecting to their arrangements but were otherwise particularly vulnerable.
It was also raised that it would be harder for whistleblowers to raise concerns about practice without recourse to an AMCP.
During the final stage of the bill’s passage through the Lords, the government agreed to an amendment which would require responsible bodies to consider the views of any ‘relevant person’ – someone engaged in caring for the cared-for person or interested in the cared-for person’s welfare – about the wishes of the cared-for person, in determining whether they were objecting to arrangements.
This amendment means that any family member or care worker who identifies that a cared-for person is objecting to arrangements can raise the matter with the responsible body and trigger a review by an AMCP.
Involvement of the cared-for person
The government was defeated a second time through the passage of an amendment giving cared-for people and those representing them an entitlement to information on the LPS process and their right to challenge an authorisation.
The bill was also amended in other ways to increase the participation of the cared-for person in the process, something the original bill was criticised heavily for not enabling sufficiently.
One amendment required responsible bodies or care homes – where they were overseeing arrangements – to consult the cared-for person, something that was not previously an explicit requirement.
A related change required that the necessary and proportionate assessment consider the person’s wishes and feelings.
The bill was also changed so that the LPS would apply to anyone aged over 16 – not 18, as initially proposed by the government. The Law Commission’s proposals had proposed a minimum age of 16, in line with the MCA.
Looking ahead to the Commons
The government also said it would bring forward amendments in the House of Commons to ensure that an AMCP would carry out the pre-authorisation review in relation to cases in independent hospital settings.
This was in response to peers’ concerns that independent hospitals, who would be the responsible body for the process in relation to cases in their settings, would face a conflict of interest because they had an incentive to keep people as inpatients to retain their income.
Junior minister Lord O’Shaughnessy added that the government would bring forward other amendments in the Commons to extend the role of the AMCP.
In addition, the government promised to bring to the Commons a statutory definition of a deprivation of liberty to ensure greater clarity for professionals in their interpretation of the law in this area. This was supported by a number of peers and was also proposed by parliament’s joint committee on human rights, in a report in June.
The government had originally raised concerns that such a definition would not be fully in line with article 5 of the ECHR, meaning it would not cover some deprivations of liberty, which would then have to be authorised by the Court of Protection.
However, Lord O’Shaughnessy told the Lords that the government would bring forward a definition that it intended would be in line with article 5.
Labour motion to scrap bill
Though the second reading debate in the Commons is timetabled for today, the Labour Party has tabled a motion to scrap the bill by declining to give it a second reading.
The motion states: That this House declines to give a Second Reading to the Mental Capacity (Amendment) Bill, notwithstanding the need for reform to the current system of mental capacity assessments and while acknowledging the improvements made to the Bill by the House of Lords, because the Bill underwent no pre-legislative scrutiny, it does not put the interests of the cared-for person at the heart of the Bill, it enshrines a conflict of interest in relation to independent providers of health and care services, it fails to provide measures to reduce the substantial backlog of Deprivation of Liberty Safeguards Assessments and it fails to recognise explicitly the interface with the Mental Health Act when determining which legislation should be used to authorise care or treatment arrangements.