Over 100 social care, disability and older people’s organisations have called for the government to pause the bill that would replace the Deprivation of Liberty Safeguards (DoLS) on the grounds that it poses a threat to human rights.
In an open letter to social care ministers last week, the group said it had serious concerns about the content and passage of the Mental Capacity (Amendment) Bill, which would create a new framework, dubbed the Liberty Protection Safeguards (LPS), to protect people deprived of their liberty under the Mental Capacity Act.
The letter, from organisations including the Voluntary Organisations Disability Group, Care England, Disability Rights UK, the National Care Association, Learning Disability England and the National Autistic Society, comes with the bill due to have its final debate in the House of Commons today.
Read more on the LPS
The organisations said the government has failed to consult adequately, the bill was explicitly designed to save money in an already over-stretched sector and assessments of its impact had been limited. In terms of the content, it said proposals to allow care home managers to oversee the process of assessing deprivation of liberty and delivering safeguards to service users in relation to cases in their homes created “serious conflicts of interest”.
‘Threat to human rights’
“It is for these reasons we believe that the reforms in their current guise pose a threat to the human rights of those requiring the greatest support in life,” said the letter, which was addressed to care minister Caroline Dinenage and junior health minister Baroness Blackwood.
As well as pausing the bill, the organisations asked the government to be “more transparent” about evidence used to justify its “significant departure” from the Law Commission’s 2017 recommendations to reform deprivation of liberty law, resolve the alleged conflict of interest regarding the role of care managers and co-produce with the sector new draft legislation to replace DoLS, adequately funding the resultant changes.
The letter comes with the bill due to have its final debate in the House of Commons today. The legislation has changed substantially since it started its passage in the House of Lords as the government has sought to address criticisms that it failed to provide sufficient safeguards to service users.
Ministers have tabled a final set of amendments to try and satisfy its critics, all of which are almost certain to be passed by the Commons today.
One of these is designed to reduce the role of independent hospitals under LPS to avoid a potential conflict of interest.
At present, independent hospitals are the ‘responsible body’ for cases where an individual is deprived of their liberty in these settings, meaning they are responsible for overseeing assessments, ensuring the various safeguards for service users are provided and determining whether a deprivation of liberty should be authorised or not. This had sparked concerns among peers, MPs and campaigners that hospitals would face a conflict of interest in deciding whether someone should be deprived of their liberty because they would have an incentive to keep people as inpatients to retain their income.
Concerns over independent hospitals
In response to these, ministers had previously amended the bill to ensure that the pre-authorisation review – which determines if the three conditions for a deprivation of liberty have been met under the LPS – would always be carried out by an approved mental capacity professional (AMCP), a practitioner with specialist training in the Mental Capacity Act. But for the amendment, the pre-authorisation review would have been carried out by practitioners who need not have specialist training, except in cases where the person was objecting to their care arrangements.
But during the bill’s committee stage in the Commons, MPs warned that the amendment did not go far enough.
Shadow mental health and social care minister Barbara Keeley highlighted the potential dangers of allowing independent hospitals, as the responsible body, to select their own AMCPs, saying they may form beneficial financial relationships with the professionals. She said it would “undermine the independence of the assessment process”.
“It is easy to see a situation in which the relationship between an independent hospital and a preferred list of AMCPs could get very cosy, with the AMCPs working only in those hospitals and the work starting to become a large part of their livelihoods.
“The responsible body is entirely responsible for the whole process of selecting the AMCP and making the arrangements, and it can just plump for the same people time and again and develop a cosy relationship. That is a real fear.”
Labour member for Stockton North Alex Cunningham also expressed his concerns over the role of independent hospitals, asking whether they could be truly impartial when treating patients who are paying directly for their treatment.
“Our focus should be entirely on people, not profit. There needs to be an absolute separation, so the conflict of interest needs to be removed from the Mental Capacity (Amendment) Bill.
“Families need to be able to raise concerns with a person who is genuinely independent; I do not believe that that can happen if the independent hospital is given total responsibility.”
In response, the government has brought forward a further amendment under which the responsible body in independent hospital cases would be, in England, the local authority responsible for the person’s care or, if there is no such authority, the local authority in which the hospital is situated; and, in Wales, the local health board for the area.
This means the council or health board would be responsible for overseeing the whole authorisation process and appointing the AMCP.
Assessor training requirements to be tightened up
The government has also tabled an amendment which would enable it to make regulations specifying the skills and experience needed by professionals conducting assessments or making determinations in relation to the three criteria required for an LPS authorisation. These are that the person lacks capacity to consent to the arrangements giving rise to the deprivation of liberty; that the person has a mental disorder; and that the arrangements are necessary to prevent harm to the person and proportionate in relation to the likelihood and seriousness of the harm.
While the bill currently specifies that assessors must have “appropriate experience and knowledge”, there had been criticism of the lack of specificity over what was required.
While under DoLS, all assessments must be carried out by people with specific professional backgrounds and additional qualifications, under the bill as stands, the only role that would require a distinct qualification and particular training under the LPS would be that of the AMCP.
A further government amendment would require responsible bodies to publish information about the LPS process and people’s entitlements under it and to ensure that this is understood by cared-for people and their representatives as soon as arrangements giving rise to a deprivation of liberty are proposed.
This amendment would, in part, reverse an earlier government decision to only guarantee that cared-for people and their representatives would receive information about the process and their rights after an LPS authorisation had been made. Instead, information would now also be provided before an authorisation were made.
After today’s debate, a final version of the bill will need to be agreed between the House of Commons and the House of Lords.
Separately, the government has published an updated impact assessment of the bill, setting out its costs and benefits.