The Court of Protection and Mental Capacity Act is transitioning through a number of key amendments including the Liberty Protection Safeguards. With monumental shifts in how Deprivation of Liberty Safeguards are administered.
Those in opposition, including The Law Society, Labour Party and various charity organisations, have argued that the government amendments have been rushed through, ill thought out and could be to the detriment of the social care service user.
Following the Supreme Court ruling in the Cheshire West case of 2014, the ‘acid test’ for deprivation of liberty centres around a person being placed under constant supervision and control and is not free to leave. It deemed a person’s compliance, lack of objection, normality of the placement and the context behind the placement to be irrelevant factors in determining a Deprivation of Liberty.
Because of the perceived low threshold to Deprivation of Liberty and the application for Deprivation of Liberty Safeguards, the health and care sector have been overwhelmed by an influx of additional cases.
227,400 completed DoLS applications were received from a managing authority to supervisory bodies in 2017-18; this is a 4.7% increase on the year earlier. Of this total number 114,370 were deemed as urgent and 113,030 viewed as standard cases.
However, in addition to these overwhelming applications, there was also a backlog of 108,545 applications to process, with over 43,000 considered urgent cases. The government have insisted that the current system needs amending as completing the backlogged assessments would require an additional £2 billion worth of immediate investment.
Highlighting the shared consensus of frustration and ineffective systems in its current iteration, the government have created greater ambiguity by issuing proposals in the form of the Mental Capacity Bill 2018 Amendment.
Under the old system, a hospital or care home notifies the local authority of a potential DoL in their care, however the local authority carry out the relevant assessments that will comply with article 5 ECHR rights through qualified, albeit overworked assessors.
Proposed amendments made in the summer, through the new Liberty Protection Safeguards (LPS), had planned to place the onus of the local authority DoLs team onto care home managers, meaning that those completing the assessments may not have the expert understanding of the Mental Capacity Act 2005 (MCA) necessary to safely complete the assessment.
The additional conflict of interest, of care home representatives, completing a form that would continually detain a patient or service user’s presence in the home, further exacerbated the ethical implications of the new system. Even the proposed increased regularity of reviews for authorisation could create an overwhelming level of paperwork that could lead to oversights.
Although some changes have been made by Matt Hancock and the Department of Health (DoH), many argue that they are not enough to ensure that decisions are made independent of the care home.
A spokesperson for the Department of Health, said: “Our bill will reform a broken system and ensure vulnerable people have quicker access to legal protections by simplifying the process and minimising duplication, without compromising essential safeguards. Any money saved through streamlining this process will be reinvested in frontline care.
“Applications will be independently scrutinised by a responsible body, such as a local authority or clinical commissioning group, and care home managers are explicitly excluded from granting authorisations or completing assessments.
“Everyone will have the right to support and representation from independent advocates, friends or family members. All cases in private hospitals will be reviewed by an approved independent professional.”
Sheree Green, a solicitor and mental health law specialist, said: “The government’s bill is quite different to the one produced by the Law Commission.
“The bill placed responsibility on the care home manager to do the DoLS or ‘liberty protection safeguard’ work, as it will in future be known.
“So the care home would be responsible for assessments and deciding whether it was necessary or proportionate option. You are making the person depriving the patient of liberty as essentially the gatekeeper.”
Barbara Keeley MP, Labour’s spokesperson on mental health and social care, said: “It is reckless that this vital bill has been rushed through parliament without proper consultation by a government more interested in cost-cutting than safeguarding the human rights of vulnerable people with dementia, autism and learning disabilities.
“The government should pause this ill-thought out bill to give time for the proper consultation with interested groups, which this bill has so severely lacked.”
Sally Copley, a policy director at Alzheimer’s Society, said: “The 747,000 people currently living with dementia in England and Wales are in peril of having their rights infringed by reform of the Mental Capacity Act.
“More than half of the people cared for under DoLS are living with dementia. Though the current system is overly complex and bureaucratic, the proposed revision would see the same person who oversees the care home also decide what care a resident should have, with no independent safeguards – a troubling conflict of interest.
“We have made our objections to this clear to the government and are calling for them to take this new role for care home managers out of the bill so that the independence of the process can be guaranteed and the rights of people with dementia can be better protected.”
Whilst the government are insistent that care home managers are not the determining factor in making decisions that could detain service users, many remain concerned that the speed with which the amendments have been made suggest the government are more concerned with papering over the assessment cracks rather than improving the system for those in society without capacity.
