The Mental Capacity (Amendment) Act 2019 received Royal Assent earlier this month. Matthew Angus and Amanda Mead examine its key provisions and how they will affect local authorities, health bodies and other organisations.
The Mental Capacity (Amendment) Act 2019 (the Act) became law on 16 May 2019. When implemented it will insert a new Schedule AA1 to the Mental Capacity Act 2005 (MCA 2005) and provide for the ‘Liberty Protection Safeguards’ (LPS) - a new system to replace the current Deprivation of Liberty Safeguards (DOLS). It is expected to be implemented in Spring 2020 and further details are expected in Statutory Instruments and a Code of Practice.
There are some welcome changes, and the Government was clear that it intended to reduce the administrative burden and cost of DOLS, especially to local authorities. The Government was also acutely aware that the previous system was simply undeliverable.
So what are the main changes/provisions and what is the potential impact for public bodies?
Definition of “deprivation of liberty”
Despite much debate in Parliament about what the definition of a deprivation of liberty might be, the current definition under the MCA 2005 will remain unchanged. The Government will publish a Code of Practice, which should provide practical guidance, with the courts being required, through case law, to address any problems. The Code of Practice will be reviewed within three years of the Act coming into force and thereafter every five years.
The failure to define “deprivation of liberty” is unhelpful and without this the difficult questions as to what being “free to leave” or “under continuous supervision and control” in a specific context remain. The Code of Practice is awaited but it remains to be seen whether this will be sufficiently clear to reduce further litigation.
The MCA 2005 applies to 16 and 17 year olds in certain circumstances but the current safeguards are only applicable to persons 18 and over. The new LPS will be applicable from age 16. This alignment is sensible but could cause friction with parents who will continue to have parental responsibility and will likely increase the total number of applications required. It is hoped that the Code of Practice makes specific provisions in this regard.
A major and welcome change is that the LPS will apply to a wider range of care settings and situations and not just care homes and hospitals. A person’s entire care package is to be considered instead of focussing on their style of living/care arrangements. For example, under the LPS an authorisation could cover a person deprived of their liberty in their own supported living placement during the week but who also resides with their family at the weekend. It could cover that person’s attendance at day opportunities and travel. Thus, we should see the current requirement for an application to the Court of Protection (COP) using the COP DOL 11 streamlined procedure for a “Community DOL”, come to an end relatively soon. Instead, the LPS will cover the realities of many people’s care and/or treatment arrangements in the community. Although welcome, this will undoubtedly present new challenges for assessors, who will need to consider a wider range of situations and will need to consult more widely with people involved with the person’s care who might see this as an intrusion into their own private lives.
Authorisation and Responsible Bodies
Local authorities’ Supervisory Body role will eventually end (probably after an implementation period). Instead, under the LPS, the obligation to authorise deprivations of liberty will rest with the relevant “Responsible Body”, which will be the organisation where the arrangements are “mainly carried out” i.e. hospitals, clinical commissioning groups (CCGs) and local authorities.
For acute hospital treatment in the NHS, the Responsible Body will be the “Hospital manager”. For packages of care funded by NHS Continuing Healthcare (or its equivalent in Wales) it will be the relevant CCG or Local Health Board.
In all other cases, the relevant local authority is likely to be the Responsible Body. For local authorities this is a shift away from having to authorise the majority of NHS healthcare-based care arrangements, and places responsibility for NHS-based authorisations with the NHS.
Local authorities will still be required to authorise deprivations of liberty that arise in non-NHS hospitals. This is an apparent discrepancy compared with the roles of care home managers. The rationale for such a decision is unclear.
There is provision for interim authority in the case of pending authorisation from the COP, authorisation under LPS or in an emergency. To obtain a full LPS there must be a pre-authorisation review to determine “whether it is reasonable for the responsible body to conclude that the authorisation conditions are met”. Such a review must be carried out by someone not involved in the day-to-day care of the person.
The legislation provides a new role for an Approved Mental Capacity Professional (AMCP) to be involved with the review, which must occur in certain circumstances. This is a new role and will lead to an initial increase in cost to the public sector through mandatory training. It seems likely that many experienced Best Interests Assessors, who currently assess under DOLS, will retrain to become AMCPs.
AMCPs “must” carry out a pre-authorisation review where the arrangements provide for the cared-for person:
- to reside in a particular place, and it is reasonable to believe that the cared-for person does not wish to reside there or receive care and treatment there;
- to receive care or treatment mainly in an independent hospital; or
- where the case is referred by the Responsible Body to an AMCP who accepts the referral.
All decision making occurs after consultation with any “relevant person” (e.g. carer, COP Deputy, Independent Mental Capacity Advocate etc.) about the person’s wishes and feelings. Previous litigation in this area has centred on the role of the person themselves. This has not yet been expanded on and clarity will hopefully be provided in the Code of Practice.
The majority of people awaiting current DOLS are elderly residents of care homes. The new LPS envisages delegation of the process from the local authority to care homes but whether this is realistic is unclear.
Under the LPS, where the care home manager provides the information, they must confirm by way of a statement, sent to the Responsible Body, that:
- there is a deprivation of liberty
- the arrangements are not “mental health arrangements or requirements”
- the authorisation conditions are met
- relevant consultation has been carried out with parties involved.
A record of the assessments, evidence of consultation and a draft authorisation record must support the statement. Concern has been raised as to whether care home managers will have the time to undertake these arrangements and also whether there is a conflict, especially if the resident has a choice of where he/she could reside. The administrative time and associated cost for the Responsible Body in checking information provided by care home managers, should not be underestimated.
Queries will arise as to who pays for the costs of training and maintaining systems within the individual care homes and this could cause conflict between the care home and the Responsible Body.
On the wording of the Act (section 19) it would appear that the care home manager could refuse to provide the information to the Responsible Body. Unless a subsequent legislative provision compels a care home manager to provide the information when required, there does appear to be little incentive for care homes to assist.
Renewals and variations
An initial authorisation can currently last for up to 12 months, and under the LPS can be renewed for up to 12 months thereafter (provided certain conditions are met and following consultation). Following this, each renewal could last for up to three years. DOLS did not provide for renewals. The LPS also provides for a variation of an authorisation, which properly reflects the changing nature of some care arrangements and allows the Responsible Body to be more responsive.
This will largely be welcomed by carers and Responsible Bodies, especially where a person’s lack of mental capacity is not in doubt and their care arrangements are clearly in their best interests/least restrictive. Over time, this is expected to reduce backlogs and cost, although Responsible Bodies will need to consider carefully how a change in care arrangements might be monitored. The person’s authorisation record should include regular reviews and a review must be carried out where a person’s care significantly changes. However, what if a person’s care arrangements in the community change to become more restrictive between reviews? Would there be an obligation on a carer or a COP Deputy to notify the Responsible Body?
The Code of Practice, and Statutory Instruments are awaited, and will hopefully provide further clarification on the matters above.
Safeguarding the liberty of vulnerable people is one of the most serious responsibilities that hospitals, CCGs and local authorities have. It is vital that preparations are made for the new regime to prevent judicial or regulatory criticism in the future.