The background to this goes back to 1997 and the Bournemouth judgement. The case involved a man with severe autism and challenging behaviour, living with carers who lacked capacity to decide where he wanted to live. While attending a day centre, his behaviour deteriorated and he was informally admitted to hospital, where he was denied any contact with his carers for 3 months. The hospital felt he should remain there to be looked after, but the carers disagreed. The case eventually went to the European Court of Human Rights who determined that the hospital had broken the law because the man had been deprived of his liberty, without any safeguards.
The Mental Capacity Act 2005 introduced a new, comprehensive set of provisions designed to protect the rights of individuals lacking capacity, known as the Deprivation of Liberty’s safeguards, known as the Dols regime. At first, Dols applied only in care home or hospital settings, then came the Cheshire West judgement. In 2014, this judgement determined that it was not just individuals’ resident in care homes or hospitals that could be subject to the regime, but those in supported or shared living arrangements and even people living in their own homes could require a Dols authorisation.
This extension of the regime quickly led to Local Authorities being overwhelmed by the volume, and what many viewed as a cumbersome and costly process to administer. There were now long waiting times for the authorisations to be decided, leading to multiple applications and withdrawals as circumstances were changing all the time. The Court of Protection was held up by the volume of decisions it was expected to process. Difficult complex and distressing cases were prioritised, which left increasing numbers of people unprotected by the system meant to do just that.
The Mental Capacity Amendment Act 2019 will introduce new rules that require that the individuals’ wishes and feelings, so far as they can be expressed, should be taken into account.
The most notable differences are set out below and all of the changes will be set out in the new Code of Practice which will be produced in order to comply with the new amendments to the Act. (Liberty Protection Safeguards).
- The new rules will apply to those 16 years and over and will apply across all settings where an individual may be deprived of their liberty.
- Responsible Local Authorities may delegate responsibility to Care Home managers for oversight of cases in their settings. This will mean commissioning assessments, arranging consultation and reporting back to the Local Authority on whether the authorisation conditions have been met. Sign off, however, will remain with the Responsible Local Authority.
- Authorisation tests are similar, but there is no requirement for arrangements to be in the person’s best interests. The focus of the new rules are instead on the prevention of harm and deterioration in the person’s condition. Authorisations will have an initial limit of 12 months duration, be renewable, but a fresh authorisation is required if the first is allowed to expire, with subsequent renewals lasting for up to 3 years.
The new legislation has had a very controversial passage through Parliament, with more than a few commentating on the involvement of the individual being the price for a streamlined process. There is still no clear agreement on what actually constitutes a deprivation of liberty.
There is no doubt that case law will play a part in providing clarity and interpretation of the new Act.
So, expect to see changes to CQC Inspection checklists, their inspection regime regarding the Liberty Protection Safeguards, changes to your policies and protection procedures, all of which should be in place after the Code of Practice is published.
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