Last reviewed 4 April 2019
Care home provider bodies have warned that the sector is “ill equipped” to deal with new responsibilities it would be given under the Liberty Protection Safeguards (LPS).
The LPS would replace the Deprivation of Liberty Safeguards (DoLS) as the system for authorising deprivations of liberty in care.
But organisations said care homes and their staff would be inadequately trained and funded to carry out the roles, which could result in higher fees for residents subject to LPS, and smaller care homes closing or others not being set up for fear of facing the additional burdens.
The warning came as analysis of the Government’s revised impact assessment of the Mental Capacity (Amendment) Bill was produced by five major care provider bodies: Care England, the Association for Real Change, National Care Association, National Care Forum, Registered Nursing Home Association and the Voluntary Organisations Disability Group.
The bill is very close to becoming law but for the House of Commons and the Lords agreeing a final version.
Under LPS certain functions currently carried out by local authorities, or mental health or best interests assessors (BIAs) on their behalf, would be passed to care home managers in cases where the local authority determines this should happen. The local authority, as responsible body, would otherwise keep the roles.
According to the analysis, the new responsibilities include identifying whether the cared‐for person is or is not deprived of their liberty according to the statutory definition in the bill; deciding if the cared‐for person’s deprivation of liberty should be authorised under the Mental Health Act rather than the LPS; arranging assessments of whether the person lacks capacity to consent to their care arrangements and whether or not they have a mental disorder, two of the three criteria that must be met for a deprivation to be authorised.
Care home managers would also select an appropriate assessor to carry out the assessment of whether the deprivation of liberty is “necessary and proportionate”; consult with the cared‐for person’s relatives or friends, including attorneys, deputies and advocates, to ascertain the person’s wishes and feelings about their restrictive care plan; and identify possible objections to the proposed care plan on the part of the person or their relatives/friends.
They would also need to decide who should be the person’s representative, whether to appoint an independent mental capacity advocate (IMCA) and notify the local authority of relevant details about the cared-for person and their representative.
Furthermore, the care home manager would have to ensure that the relevant responsible body has commissioned and acquired a pre‐authorisation review, and would draft a legally robust authorisation for signature by the local authority.
The provider bodies said BIAs and mental health assessors are highly trained to carry out their roles, whereas there were “gaps in care staff confidence and competence to provide care within the framework of the Mental Capacity Act (MCA)”. The impact assessment allowed for half a day’s familiarisation training for care home managers on their new responsibilities, based on the Government’s argument that the role builds on what care home managers do under DoLS.
But this was strongly rejected by the provider bodies. Care England Chief Executive Professor Martin Green said: “The second version of the impact assessment is full of loop holes and anomalies being open to chaos and confusion. The very suggestion that care home managers will need only half a day’s familiarisation training indicates just how out of touch the Department of Health and Social Care is.”
The analysis also said the LPS framework seemed to “lack logic” and would be hard to understand for those involved in it, especially as there would be multiple routes for authorising and assessing a deprivation of liberty, which it felt was “extraordinarily complex”.
The Mental Capacity (Amendment) Bill: Analysis of 2019 Impact Assessment is available at www.careengland.org.uk.