Government gets DoLS replacement bill through Commons but now must secure peers’ agreement

Mental Capacity (Amendment) Bill passes final stage in Commons despite rejection from opposition parties, as minister seeks to reassure social care sector that reforms will be robust and won’t cut costs

Picture: Fotolia/downunderphoto

By Luke Haynes and Mithran Samuel 

The bill to replace the Deprivation of Liberty Safeguards (DoLS) has been passed by the House of Commons despite rejection by opposition parties and calls for it to be halted by social care organisations.

The Mental Capacity (Amendment) Bill, which would replace the DoLS with a new system for authorising deprivations of liberty in care, the Liberty Protection Safeguards (LPS), passed its third reading in the Commons by 299 to 241 votes on Tuesday. Government and Democratic Unionist Party MPs combined to outvote opposition MPs, some of whom backed calls from over 100 care bodies last week for the government to halt the process on the grounds that it posed “a threat to human rights”.

Before the third reading vote, the government sought to address these criticisms through amendments to increase the duties on local authorities and NHS bodies to inform service users of their rights, remove the role of independent hospitals in authorising deprivations of liberty and enable tougher standards to be placed on the expertise required of assessors.

However, this was not sufficient to win over Labour and Liberal Democrat MPs, several of whom attacked the bill in this week’s debate. It is now down to the House of Lords, who have already considered the bill, to agree a final version with the Commons, during the so-called ‘ping pong’ stage on 26 February.

Many Labour, Liberal Democrat and crossbench peers spoke out strongly against the bill during its passage through the Lords, but it is not clear whether the Lords will drive a hard bargain to get the bill agreed, after which it would become law.

In their open letter to social care ministers last week, social care, disability and older people’s organisations said the government had failed to adequately consult the sector about the bill and expressed fears of a potential conflict of interest regarding the role of care managers under LPS.

‘We must not weaken protections’

Lib Dem former social care minister Norman Lamb made reference to the open letter in this week’s debate, saying it was “absolutely outrageous” that a bill which deals with fundamental human rights had been “rushed” through parliament.

Lamb said he recognised the need for reform, with over 125,000 DoLS applications having been left incomplete as of the end of 2017-18 due to caseloads – the result of the Supreme Court’s 2014 Cheshire West judgment which, in effect, lowered the threshold for a deprivation of liberty in care.

A central plank of the government’s argument for LPS is that it is a more efficient and streamlined system than DoLS, requiring less resource per case, meaning waiting lists would be much lower and fewer people left deprived of their liberty without legal authorisation.

Lamb said: “I completely understand the need for reform [and] I recognise that we breach the human rights of the people who are on a long waiting list for anything to happen to them, but that is no justification for getting it wrong at this stage.

“Surely we must not weaken the protections for very vulnerable people, yet the organisations that have followed this process all the way through are very clear that that is precisely what we will do.”

Not a cost-cutting activity

Before the debate, minister for care Caroline Dinenage published a response to the open letter, defending the bill. She said the LPS would “provide robust protections” for individuals and would be “simpler” than DoLS, allowing protections to be implemented “quickly and effectively”.

Dinenage stressed that the bill had not been a cost-cutting exercise but had instead been designed to increase efficiency by “reducing duplication”. For instance, the bill would make it easier to rely on assessments of the person’s capacity and mental health that had already been undertaken “which means there is no need to commission a new doctor at significant cost for each person for each and every authorisation”.

She pledged that no money would be removed from the system, and said that any savings from the replacement of DoLS by the LPS would be “reinvested in delivering care and support”.

Conflict of interest fears

Dinenage also used the letter to address fears around potential conflicts of interest within care home settings under the LPS.

Under the bill, the local authority, as responsible body, may give care home managers the role of overseeing the LPS process where a person may be deprived of their liberty in a home, including commissioning any assessments. Critics have argued that this responsibility would create a conflict of interest between managers’ duties to protect the reputation of their homes and retain the income from service users’ placements, and those to ensure cared-for people subject to LPS receive adequate safeguards.

But Dinenage said that the system had been constructed with “a system of checks and balances” in place to protect against such a conflict. This included the condition that anyone with a connection to the care home, as defined by regulations, would not be able to conduct assessments under LPS where the process was being overseen by a care home manager.

She added that the government was committed to producing the LPS code of practice, which would provide statutory guidance to practitioners on implementing the system, in partnership with the sector, and invited the signatories to the open letter to take part.

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