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25th September 2018

Plans to replace DoLS: what do we know so far?

 

I don’t want you all to worry too much about the plans to replace the deprivation of liberty safeguards (DoLS) with a new framework. Nothing is yet clear enough to be keeping us awake at night: for example, even the name, currently ‘liberty protection safeguards’ (LPS) isn’t decided for certain, much less what, exactly, the new rules will look like or when they will come in. The Government has published a draft Bill and it’s now reached the committee stage in the House of Lords.

Reasons for the change

We’ve known for a while that DoLS were for the chop: nobody has had a good word to say for them, and certainly the language and bureaucracy were trying.  And then it became more urgent after the Supreme Court clarified the ‘acid test’ for recognising when a care plan deprives someone of their liberty: most care plans in dementia care settings, or for people with moderately severe learning disabilities or acquired brain injuries, do meet the test.

For more information on working within the ‘acid test’ see the CQC briefing

Almost immediately, local authority DoLS teams were overwhelmed with requests for authorisations.  The numbers have rocketed from about 13,000 a year before the Supreme Court judgment in 2014 to more than 200,000 a year.  This should be fine – after all, it’s good to recognise when a vulnerable person’s rights are being breached, and to do all you can to check that you’re doing the right thing.

The problem is that the local authorities are failing to get to about half of these requests in any reasonable time-scale. They simply don’t have the trained assessors, or the budget, to carry out these top-quality assessments.  The hospitals and, especially, care homes apply for authorisations, but the person concerned may leave that setting, recover capacity or, more often, simply die while waiting for assessment. This has to be seen as unacceptable; hence the new proposals.

The new framework

We thought we knew roughly what we were getting in the Liberty Protection Safeguards (or whatever they’ll be called). This is because the Law Commission, in its work to replace DoLS, engaged really well with providers, professionals, lawyers and others, in their search for what would work best.

Imagine how startled we were, then, when the Mental Capacity (Amendment) Bill made its appearance and was radically different from anything that the Law Commission had consulted us all about! The most surprising new suggestions relate to care homes – the very settings where most people are indeed deprived of their liberty, and where many of the stresses in the current system arise.

Proposed new roles for care home managers

The Government spokesman, Lord O’Shaughnessy, said in the debate that the new plans only formalise what care home managers are doing in any case. This is the reason why they think that a mere half day of training is all that will be required to bring these managers up to speed. Yet when you look at what they are being asked to do, almost all the tasks currently carried out by the DoLS team will be put on their shoulders. These are emphatically not work they currently undertake. Tasks include providing the local authority with a detailed draft authorisation for sign-off.

For some of what else must be provided, with evidence, I quote below from the synopsis provided by the always-helpful lawyers of 39 Essex Chambers:

(a) The person is 18 or over;

(b) The arrangements give rise to a deprivation of liberty (with reasons);

(c) The arrangements are not excluded by the MHA provisions;

(d) The cared-for person has been determined to lack the relevant capacity, is of unsound mind, and the arrangements are necessary and proportionate;

(e)  Consultation has been carried out;

(f)  Appropriate person and/or advocacy requirements have been carried out;

(g) Whether the person does/not wish to reside or receive care/treatment (with reasons).

The manager is responsible for doing or organising what is necessary to achieve (a)-(g).

S/he arranges the assessments for the criteria for detention. S/he consults necessary consultees and secures LPS representation/advocacy. S/he identifies whether there is an objection.

One may legitimately question whether it is appropriate for a proposed detainer to be doing so much in arranging the proposed detainee’s detention. And, for that matter, whether care home managers are going to be willing and able to meet these significant expectations. The half-day training estimate for managers is beyond optimistic. 

[For the full analysis and comment by 39 Essex Chambers, see here]

The Care Providers Alliance (CPA), the Association of Directors of Adult Social Care (ADASS) and many others have also raised concerns about these changes to the registered manager role, which are widely seen to risk conflict of interest as well as possibly forcing some providers out of business.  All these worries have so far been dismissed by Government, but there is more discussion in the House of Lords in October.

Three things to remember

I started by saying I wouldn’t worry you; I’ve now worried you sick!  So here are three pointers to help until we know more:

  1. Both DoLS and the new system are part of the Mental Capacity Act (MCA), so get the basics right: always involve the person in creating their care plan, and build it around their wishes and feelings as far as you humanly can.
  2. Remember that we’re still using DoLS for the foreseeable future, so concentrate on getting the processes right. Get advice from your local DoLS team if unsure. Diarise important dates. Follow any conditions. And cherish the relevant person’s representatives (RPRs) and advocates, because they are gold dust in helping you reduce restrictions wherever possible.
  3. Keep calm and carry on!

*All information is correct at the time of publishing

Rachel Griffiths

Mental Capacity and Human Rights Specialist

Rachel has huge experience and knowledge in the area of Mental Capacity, including how to recognise deprivation of liberty, when and how to assess capacity and how to go about making decisions in someone’s best interests. She is nationally recognised as a leading voice with regards to Mental Capacity, and is involved with setting the agenda as well as providing advice and information about Mental Capacity. The information, guidance and support that Rachel provides helps to ensure that the way people work is within the law and recognises that the person using services is always at the centre of any decisions made. Read more

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