By Luke Haynes and Mithran Samuel (story updated 1 April)
The care home sector is “ill equipped” to deal with new responsibilities it would be given under the Liberty Protection Safeguards (LPS), leading provider bodies have argued.
The organisations said care homes and their staff would be inadequately trained and funded to carry out the roles under the framework that would replace the Deprivation of Liberty Safeguards as the system for authorising deprivations of liberty in care.
This could result in higher fees for residents subject to LPS, and smaller care homes closing or others not being set up for fear of enduring the additional burdens, they said.
The warnings came in an analysis of the government’s revised impact assessment of the Mental Capacity (Amendment) Bill, which would introduce LPS. The bill is on the verge of becoming law, but for the House of Commons and Lords agreeing a final version. The Commons will consider the latest changes from the Lords on 2 April.
The analysis has been produced by five of the major care provider bodies – the Association for Real Change, Care England, the National Care Association, the National Care Forum, the Registered Nursing Home Association and the Voluntary Organisations Disability Group.
Increased role of care home managers
Under DoLS, local authorities – in their role as ‘supervisory body’ – are responsible for the whole process of assessment and authorisation of people who may be deprived of their liberty in care homes.
Care homes have a significant role as ‘managing authorities’, under which they must apply for authorisations and, where an authorisation is given, ensure that the person understands the effect of it and their rights to challenge the authorisation.
They must also request a review of the authorisation if it appears any of the qualifying requirements are not met.
However, under LPS, a number of functions currently carried out by local authorities, or mental health or best interests assessors (BIAs) on their behalf, would be passed to care home managers in cases where the local authority determines this should happen. The local authority – as responsible body – would otherwise retain the roles.
The analysis said the new responsibilities included:
• identifying whether the cared‐for person is or is not deprived of their liberty in accordance with the statutory definition in the bill;
• deciding if the cared‐for person’s deprivation of liberty should be authorised under the Mental Health Act rather than the LPS;
• arranging assessments of whether the person lacks capacity to consent to their care arrangements and whether or not they have a mental disorder, two of the three criteria that must be met for a deprivation to be authorised;
• selecting an appropriate assessor to carry out the assessment of whether the deprivation of liberty is ‘necessary and proportionate’, which is the third criterion;
• choosing the right person determine whether those assessments support a care plan which deprives the person of their liberty within this care home and this care plan;
• consulting the cared‐for person’s relatives or friends, including attorneys, deputies and advocates, to ascertain the person’s wishes and feelings about their restrictive care plan;
• identifying possible objections to the proposed care plan on the part of the person or their relatives/friends;
• highlighting the need for the responsible body to instruct an approved mental capacity professional (AMCP)
• deciding who should be the person’s representative;
• deciding whether to appoint an independent mental capacity advocate (IMCA) and notifying the local authority of relevant details about the cared-for person and their representative;
• ensuring that the relevant responsible body has commissioned and acquired a pre‐authorisation review;
• drafting a legally robust authorisation for signature by the local authority.
Lack of funding for training and delivery
The provider bodies said BIAs and mental health assessors were highly trained to carry out their roles, whereas there were “existing gaps in care staff confidence and competence to provide care within the framework of the MCA”.
Despite this, the impact assessment allows for half a day’s ‘familiarisation training’ for care home managers to get up to speed with their new responsibilities, which is based on the government’s idea that the role builds on what care home managers do under DoLS.
But this point has been strongly rejected by the provider bodies and other MCA commentators.
The provider bodies had previously estimated that the funding for training for care home managers would be too low “by a factor of ten”. This, it said, was mainly due to a failure to account for training of other senior staff, who would cover for managers when they were on leave.
Besides the lack of money allocated for training, the provider group said the impact assessment failed to allocate any resources to care homes for their new responsibilities, with money given to responsible bodies instead.
This included almost £20m for carrying out assessments of whether a deprivation of liberty was necessary and proportionate, and £47m for administration, the burden of which would fall significantly on care homes, said the analysis.
Higher fees and home closures
While the impact assessment claimed that LPS would deliver “significant savings for local authorities to reinvest in care”, the provider bodies warned that this was because costs were being shunted onto providers.
“It is hard to escape the inference that these savings are because the unavoidable costs are being transferred to care homes, with none of the funding stream similarly transferred,” it said.
This was particularly problematic at a time when the care home sector was already financially weak, said the paper.
The provider group warned that there was a strong likelihood of impact of higher fees for service users subject to LPS, which the analysis said would be “innately unfair” for people who were having their rights upheld.
It also predicted that the increased costs and responsibilities would lead to the closure of smaller care homes, or to people being dissuaded from setting up care homes, particularly “new, small, innovative services, so needed in learning disability settings”.
Read more about the passage of the bill here:
Government deprivation of liberty definition in DoLS replacement bill rejected by Lords in favour of ‘clearer’ version
While the paper said there had been informal assurances that LPS teams within local authorities would retain the responsibilities they might otherwise pass to care home managers, it warned:
“Like all assurances not founded in evidence, this is to be treated with caution. It is likely that pressure will be brought on local authority [LPS] leads to avail themselves of their legal right to ask care home managers to take over these responsibilities, so that their own funding will stretch further.”
Overly complex system
As well as criticising the impact of the bill on care homes, the analysis also said the LPS framework seemed to “lack logic” and would be hard to understand for those involved in it.
In particular, under LPS, there would be multiple routes for authorising and assessing a deprivation of liberty, which the analysis said was “extraordinarily complex”.
In contrast, there were only two routes for authorising a deprivation of liberty now, in England: through the local authority under DoLS in care homes and hospitals, or the Court of Protection for other settings
The different routes are listed in this table:
|Service user situation||Responsible body|
|Eligible for NHS continuing healthcare funding||Clinical commissioning group (CCG)|
|Qualifying for supported living, shared lives schemes, extra-care housing or domiciliary care||Local authority|
|Receiving care in NHS hospitals||Hospital trust|
|People within independent/private hospitals||Local authority|
|Accommodated within a care home||Local authority – much of role delegated to care home managers in certain cases|
The group added that the authorisation process within care homes was “opaque and illogical”, expressing confusion around why the LPS would only apply to people aged over 18 in care homes, whereas in other settings it would apply to people who were 16 and over.
It pointed out that for people in a care home aged 16 or 17, it was unclear how their rights would be protected and by whom.
The analysis was written for the provider bodies by Rachel Griffiths, a consultant on the Mental Capacity Act who was, until April 2017, the Care Quality Commission’s lead on the MCA.
Revised impact assessment to follow parliamentary process
When asked for comment about criticism surround the impact assessment, the Department of Health and Social Care, said:
“Liberty Protection Safeguards have vulnerable people at their heart, and will streamline existing care planning processes to reform a backlogged and bureaucratic system.
“The impact assessment was updated to reflect changes made to the Bill in the Lords and will be revised again when the parliamentary journey is complete, considering stakeholder feedback.
“The accompanying code of practice will provide comprehensive guidance for practitioners, including care home managers, and is being co-produced with a wide range of organisations.
“We will also publish and resource a training strategy to ensure all involved are prepared for their role in the new system.”