The Mental Capacity (Amendment) Bill is travelling at pace through parliament, so could this be the end of Deprivation of Liberty Safeguarding as we know it? Let’s hope so, because the current system is over complicated and has placed huge amounts pressure on Local Authorities who struggle to process the burgeoning number of referrals under the current arrangements.
So, what will replace it? The bill sets out a more streamlined and manageable system which now covers all types of care settings, so domiciliary and supported living services will be included under the new act. A significant development is that the new bill does not rely exclusively on the local authority to authorise deprivation of liberty and sets out a much wider remit which includes CCGS & Hospitals the acid test being where most of the care is delivered.
Another welcome element is that Care Providers and Registered Managers will play a greater role in the decision-making process which is a huge step forward because it is the providers and their staff that probably has the greatest understanding of the persons needs and therefore best placed to make decisions in the persons best interest. Best Interest Assessors will be abolished and there will only be a need to involve a Professional Mental Capacity Assessor if the person objects to the referral.
There was a suggestion that the new legislation extended to 16 & 17year old’s, but this has now been scrapped and the new bill applies to those aged 18 years and above.
There are 3 conditions which must be met under the bill which would justify a deprivation of Liberty, they are:
- the cared-for person lacks capacity to consent to the arrangements;
- they are of ‘unsound mind’;
- the arrangements are ‘necessary and proportionate’.
These conditions are exempt for people detained or receiving care under the mental health act.
There could also be a change of name. Although a new name is not being proposed, the explanatory notes in the bill refer to ‘Liberty Protection Safeguards’, which is the name put forward by the Law Commission so just keep this in mind…….