An update on the reform of Deprivation of Liberty Safeguards

The year 2018 has seen substantial reform and Parliamentary time for the Deprivation of Liberty Safeguards (DoLs) legislation, much to the surprise of people who thought this would not be the case. But these developments have not come without opposition.

In July, we saw the Mental Capacity (Amendment) Bill introduced. This bill abolished the Deprivation of Liberty Safeguards, by deleting Mental Capacity Act 2005 (MCA) Schedule A1 and 1A and added instead a new Schedule AA1. This was anticipated to be known as the Liberty Protection Safeguards, although the bill does not use that title explicitly.

Care providers, charities and residents’ groups voiced their concerns about the proposed bill. Issues centred around the new responsibilities on registered care home managers to secure the authorisation of care and treatment regimes that deprive residents of their liberty.

The potential for care home managers to face conflicts of interest during these tasks were huge by being responsible for safeguarding the rights of people deprived of liberty in the homes they run.

In light of these concerns, amendments were made in November after the bill began its report stage in the House of Lords. The members confirmed that the appropriate role for care home managers was in “identifying that someone may lack capacity and need restrictions as part of their care”. They agreed the role would be proposed and clarified through some amendments in the bill.

In more recent events, Labour attempted to get the bill thrown out on the grounds that it would not put the interests of service users first, would create conflict of interests (as already mentioned), would not reduce the substantial backlog of DoLs cases and would not address the interface between the Mental Capacity Act 2005 and Mental Health Act 1983.

Despite their efforts, on 18 December the motion was defeated through the greater numbers of Conservative and Democratic Unionist Party (DUP) members, which allowed the bill to pass its second reading in the Commons. It will now be scrutinised in detail by a committee of MPs.

Matt Hancock, the secretary of state of health and social care said:

“There are currently 2 million people in this country who have impaired mental capacity. Care homes and hospitals often have to take decisions to restrict people’s movements in order to protect them. That could involve preventing elderly people with dementia from moving, or stopping vulnerable people getting access to things that they could use to self-harm. The present deprivation of liberty safeguards are meant to ensure that people who lack the capacity to make decisions for themselves are not deprived of their liberty unfairly or unnecessarily, but the current system is broken and needs to change.”

Providers need to be aware of the ongoing developments in this area, as well as how the Liberty Protection Safeguards will differ from DoLs. There are significant differences between the two and continuous changes in light of concerns made by providers.

The main differences are:

1. It would apply in any setting in which a person may be deprived of their liberty;

2. Responsible local authorities may give care home managers responsibility for overseeing cases in their settings. This would involve commissioning assessments, arranging consultation and reporting back to the local authority on whether the authorisation conditions have been met. The sign off would remain the authority’s responsibility.

3. They will apply to anyone aged 16 or over;

4. The “responsible body” which would sign off the authorisation would differ by setting;

5. The tests for authorisation are similar, but it would no longer be required that the arrangements are in the person’s best interests;

6. The only role that will require a distinct qualification and particular training would be that of the AMCP.

7. They will have an initial limit of 12 months and be renewable, with a fresh authorisation required after one expires. While the first renewal would have a limit of 12 months, subsequent renewals could be for up to three years.

The Liberty Protection Safeguards are unlikely to become legislation until March. In the meantime, we wait with bated breath to see what will happen until then.