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Dimensions briefing on the Mental Capacity (Amendment) Bill

The proposed bill differs significantly from the Law Commissions proposals in the responsibilities it creates for care home managers, making them entirely responsible for co-ordinating the application process and giving them responsibility to make key decisions in relation to representation and advocacy for those who lack capacity to request it themselves.

For a bill formulated in the spirit of strengthening safeguards and the voice of people deprived of their liberty in decision making, the proposed legislation presents a perverse weakening of safeguards where someone lacks capacity to request an ‘appropriate person’ or an IMCA as compared to the current DoLS scheme.

Feedback from Dimensions’ managers strongly expressed that a decision about whether someone should have an ‘appropriate person’ or an IMCA appointed should not reside with the care home manager that is ultimately carrying out the arrangements depriving someone of their liberty.

There is also strong objection to the care home manager taking on responsibility for referring reviews to an Approved Mental Capacity Professional where the manager becomes aware that someone is objecting to or unhappy with their arrangements.

These proposals are evidently open to abuse by care home managers who might benefit in some way by keeping people in more restrictive care plans, for example – when under significant staffing pressures. One manager stated that safeguards would be entirely dependent on the ‘trust and integrity’ of the care home manager, amounting to no real safeguards at all.

It should also be noted that it is unlikely that the current inspection regime would be able to observe where people’s objections were being overlooked or ignored – leaving almost no real scrutiny or chance of redress for people who lack capacity to request advocacy for themselves.

The proposed bill does not seem workable in relation to the responsibilities it creates for care home managers and would present significant challenges if implemented given the strong feeling of unease amongst managers.

 

Background to Dimensions’ work on DoLS reform

Dimensions managers of both supported living and residential care settings were consulted to formulate our position on the proposed bill.

Dimensions responded extensively to the Law Commission’s review of the Deprivation of Liberty Safeguards (DoLS) scheme and broadly supported the intention of the Liberty Protection Safeguards (LPS) scheme recommended by the Law Commission in 2017.

Dimensions set out that any new legislation in relation to deprivations of liberty must ensure that:

  • An individual is not subject to restrictions and deprivations of liberty that exceed necessary and proportionate measures, including ongoing reviews of the decision to ensure that the deprivation of liberty continues to be necessary and proportionate
  • Those involved in making a decision about the deprivation of someone’s liberty are obligated to consider their best interests and to involve the individual, their wishes and preferences, as far as possible in the decision making process
  • An individual has the right to appeal a decision made in relation to them and has adequate support in making such an appeal

The proposed bill diverges significantly from the Law Commission’s recommendations in relation to the responsibilities created for care home managers. Within the current bill, care home managers will be responsible for:
– Providing relevant information to the responsible body to gain an authorisation for arrangements – including

  •  A written mental capacity assessment
  • Written information about consultation
  • Medical evidence of unsoundness of mind
  • A statement on the necessity and proportionality of the arrangements
  • Information about whether someone is objecting
  • A statement as to whether the person needs an appropriate person or IMCA

– Carrying out consultation with appropriate interested parties
– Carrying out reviews of authorisations – including an decision to refer the review to an Approved Mental Capacity Professional

 

Feedback from Dimensions Managers

1. The administrative role created for managers

This will place a substantial administrative burden on care home managers to make sure the necessary process has been followed to obtain authorisation of arrangements.

Managers highlighted the fact that these responsibilities currently exist for care home managers and that supported living managers often carry out these responsibilities for community DoLS applications, even though this should be the responsibility of the local authority.

Managers stated that this would take up valuable time and resource, but also highlighted the benefits of having control over the process and being best placed to carry it out in terms of knowing the ‘cared for person’.

Overall, managers were not confident that local authorities would be able to carry out this process more easily or effectively, but acknowledged that increased liability for the local authority might prompt better practice.

Some managers of supported living shared their experience of working effectively alongside local authorities to put DoLS in place, with the local authority providing good support whilst the provider took on leadership in compiling the applications. This was generally felt to be a productive way of working and suggests that the success of the new scheme will rely on local authorities having capacity to engage in this way for registered care homes and other settings.

Managers supported the measures that had been taken to reduce the amount of bureaucracy in the new scheme, including a) changes in the reviewing process b) the extension of authorisations across multiple settings c) the use of existing assessments to inform authorisations. One manager expressed frustration that the Law Commission had not recommended the more comprehensive protective care scheme, which might have significantly reduced the level of bureaucracy.

Managers felt uneasy about the pace of the introduction of the new scheme. They stressed the need to make sure local authorities and providers were confident of the implications of changes. In particular, managers recognised that the responsibilities would create a need for them to explain the new scheme to a ‘cared for person’ and the person’s rights within it. Some managers felt this would require upskilling and new learning.

2. The decision making role created for managers

Managers felt there was a clear conflict of interest in relation to decision making about whether a ‘cared for person’ is objecting to arrangements and deciding whether that person requires an ‘appropriate person’; who that ‘appropriate person’ should be; and deciding if someone should have an Independent Mental Health Advocate (IMCA) in their best interests.

Managers felt this responsibility was entirely inappropriate and highlighted the way it could be abused by care home managers.

Managers expressed concern about care homes were the care home manager under great pressure, might benefit from people being in more restrictive care arrangements and thus be reluctant to support them to gain representation from an ‘appropriate person’ or IMCA.

Managers were clear that this provision was not just open to sinister abuse, but also to care home managers inadvertently failing to realise that someone was unhappy with their arrangements. Managers generally agreed that appeals against deprivations of liberty were uncommon. Some felt this was because very few people objected to or were unhappy with their arrangements, but attributed this to the fact that Dimensions does not subject people to overly restrictive care plans.

A system of opt-out rather than opt-in advocacy was felt to be a possible solution to the care home manager having to make a decision in someone’s best interest and to the manager having to decide if someone was objecting to their arrangements. Importantly, managers felt the proposed bill created an increased and uncomfortable responsibility on them that was unlikely to be reflected in their pay and would require providers to take steps to support them more extensively.

 

The opportunity to strengthen people’s rights

Dimensions recognises that a balance must be struck between strengthening people’s rights and ensuring a reasonable and manageable level of administration within the social care system.
As a provider, we are conscious of the need to ensure managers have the time and resources to provide good support to people. Any time that resource is drawn away from this, to carry out administrative tasks, is time lost to other, valuable elements of their managerial role.

At Dimensions, we are also committed to upholding the rights of people with learning disabilities and autism and we are all too aware of the need for safeguards, particularly for those who lack capacity to represent and advocate for themselves around fundamental issues.

Dimensions would like to emphasise the opportunity presented by this bill to strengthen the rights of people who lack capacity to consent to their care and treatment arrangements and we note that the bill does not include sections from the Law Commission relating to Best Interests and Supported Decision Making.

We would be happy to work with parliamentarians on this bill to ensure that the highest level of rights protection can be achieved, without overly burdening a system such that it becomes ineffective and unable to safeguard those who most need protections.