Our MD talks about changes to Deprivation of Liberty Safeguards, following the Mental Capacity (Amendment) Bill in April 2019.

Keeping you up to date

There is a lot of talk in the world of health and social care at the moment about changes to the Deprivation of Liberty Safeguards, following the Mental Capacity (Amendment) Bill in April 2019. So we thought it would be a good time to pull our Managing Director aside for a chat to shed some light on the situation and the implications of changing to Liberty Protection Safeguards.

Are the Deprivation of Liberty Safeguards being replaced or will the proposed changes not happen if we leave the European Union?

Irrespective of what happens with Brexit the new framework, Liberty Protection Safeguards (LPS), will be replacing the Deprivation of Liberty Safeguards (DoLS).

When is this likely to happen?

For all intents and purposes, it will be in October 2020 as outlined by the Care Minister, Caroline Dinenage when writing to parliament earlier this month. It was going to be the spring of 2020, but this was altered to allow a sensible timescale for Responsible Bodies to implement the changes.

Who are the Responsible Bodies?

It’s just a name change really. The responsible body is what we would currently know under DoLS as the Supervisory Body, in other words, the local authority for care homes and local health authority for hospitals. For care homes it is still the local authority that will make the decision about a person being granted an LPS. For hospitals it will be the hospital manager and for people being commissioned under continuing healthcare outside of the hospital, it will be the Clinical Commissioning Group (CCG).

So, what is the big change?

The biggest change, as I see it, revolves around ‘Best Interest’. Under DoLS the emphasis is placed on ‘what is in the person’s best interest’. That is why current supervisory bodies are under immense pressure as they have to provide ‘Best Interest Assessors’ and manage ‘Best Interest Meetings’ and, quite simply, they don’t have the funding or resources to meet this demand. Under the LPS framework, the new responsible body can authorise an LPS if they are satisfied about three conditions: (i) the person lacks capacity; (ii) the person has a mental disorder; (iii) the arrangements are necessary and proportionate. As you can see there is no requirement for best interests.

There are a number of other changes, for example the LPS will apply to anyone aged 16 and over, It will also be brought into community care and other domestic settings for the first time and it has increased flexibility in that it can transfer amongst sites.

Let’s pick you up on a few points there. Starting with the ‘Best Interest Assessors’, what happens to them?

Ok. The Best Interest Assessors will adopt a new role of AMCP which stands for Approved Mental Capacity Professionals. In essence, for supervisory bodies as we know them such as the local authority, this will be social workers. The role of the AMCP will be to complete the independent checks known as the pre-authorisation review. This is the three points I mentioned earlier i.e. ‘does the person lack capacity?

You also mentioned Community Care?

Yes, under the current legislation DoLS cannot be applied for people receiving community care (domiciliary) using the Standard or Urgent Authorisation requests. Under the LPS framework this changes to any domestic situation, meaning community care organisations would need to apply to their responsible body (local authority).

We heard a lot of talk around the assessment and how care managers will now need to do all the work?

To be honest, I do believe this is where a lot of the issues are arising. Over the last year I’ve attended multiple conferences or meetings and listened to a host of experts talk on the subject and I have to say, I’ve left feeling confused too. The nuts and bolts of it all is that everyone is attempting to second-guess what the legislation is going to be. We have a clearer picture now, I’m not saying it’s the full picture yet, but I feel the hardest work is going to fall on the local authority, hospital managers and the CCG. That’s why the challenge currently is around finance and training for those settings.

In terms of assessments, yes, the care provider will need to complete applications for LPS but this is not much different to what we do now when applying for a DoLS. I can’t really say much more than that until I see the forms. However we already have to do capacity assessments, best interest assessments and care plans. We also have to provide evidence of why it is necessary to deprive liberty and how we have assessed the situation to ensure we take the least restrictive action. Looking at the three-assessment conditions, I’d say we are most likely already doing it. The legislation does say that, for care homes, the local authorities can delegate the assessment and consultation process to the care home manager and I guess we will need further clarification around this. However, speaking with several local authorities, the feeling is that this will be for cases where the care home can show there is, or will be, no challenge to the application from the person or family. I guess we will know more on this by spring 2020 when the Code of Practice is released.

So, what do we do from now till October 2020?

Continue as normal using the DoLS process and continue to train your staff on MCA & DoLS.

Some people are saying that when they apply for a DoLS it can take over a year, what advice would you give?

Whichever local authority or health authority you operate within can determine the waiting time. In some cases, it can be up to two years. The main advice I would give is to track all applications submitted and regularly chase the supervisory body for updates. You will need evidence of this to show CQC inspectors during inspections.

We’ve heard under the new system of LPS that approvals will be transferable?

This is a fundamental part of the change and should help to prevent repetitious applications. What I mean by this is that, under the current system, the DoLS approval is non-transferable. So, if someone went from one care home to another, a new application would have to be made. Under the new system as long as the reason for deprivation of liberty was the same, no new application would have to be submitted.

When the LPS Framework becomes statutory in October 2020, what happens to all those who have a DoLS approval?

Good question. The consensus and what is being touted from government is that there will be a transitional period of twelve months where both systems will run side by side. What this means essentially is that those with approved DoLS will run for their maximum term and then be transferred to LPS when being reapplied.

So, all in all, is there any need to panic at this stage?

Panic? No. If you are a care home, there is nothing to do and nothing to prepare for until at least the spring of 2020 when the Code of Practice should be released. I’m sure it will be a little busier for those who are becoming responsible bodies but again, as it stands, until further clarification is given they are pretty much in the same boat as everyone else.

Training?

Well I’m glad you asked. As a national training provider, we deliver a lot of training on the Mental Capacity Act and Deprivation of Liberty Safeguards to our clients and their staff. For the time-being this will continue until we are leading up to the switch-over to LPS. That said, we have plans in the offing to deliver free webinars in November 2019 to give updates. We are also going to be conducting management workshops on the LPS framework free of charge across the country in March 2020. So I invite everyone to register their interest for this by sending an email to admin@cba-training.co.uk