Anna Lemmer, Ridout Law, 29 December 2021
The Department of Health and Social Care (“DHSC”) has announced a further delay to the public consultation on the draft regulations and draft Code of Practice for the Mental Capacity Act 2005 and the Liberty Protection Safeguards (“LPS”).
The DHSC had intended to launch the consultation in the summer of 2021 but said that due to factors outside of its control it was unable to do so. In a letter to the LPS national steering group members dated 16 December 2021, the DHSC stated, “I am pleased to report that we are making good progress towards consultation, and are in the final stages of preparations. We are aiming to launch early in the new year, however, as you would expect, we are monitoring the current situation with the Omicron variant, and therefore the capacity in the sector to engage with a consultation, before we launch.”
The DHSC has noted the importance of the successful implementation of the LPS but stressed that without adequate time to prepare, the implementation will not be a success. The DHSC has provided that it is in the final stages of preparations and aims to launch the consultation in early 2022.
The Mental Capacity (Amendment) Act 2019 (“MC(A)A 2019”), introduced the LPS to replace the Deprivation of Liberty Safeguards (“DoLS”). The LPS will authorise deprivation of liberty in order to provide care or treatment to an individual who lacks capacity to consent to their arrangements, in England and Wales.
DoLS and the Mental Capacity Act 2005
While we wait for the LPS to be implemented, the principles of the Mental Capacity Act 2005 (“MCA 2005”) and the safeguards provided by DoLS still apply. Providers should continue to ensure compliance with this important area, by making the necessary DoLS applications to local authorities, in order to reduce the risk of people being deprived of their liberty without the proper authorisation. Good use of the MCA 2005 can help providers support people using services around areas of consent, decision-making and in upholding human rights.
CQC’s annual state of Care report, ‘The state of health care and adult social care in England 2020/21’
In CQC’s annual state of care report titled, ‘The state of health care and adult social care in England 2020/21’ (published in October 2021), CQC raised concerns about delays in authorisations, “…which mean that individuals are deprived of their liberty longer than necessary, or without the appropriate legal authority and safeguards in place.”
Concerns raised by CQC around DoLS in the state of care report were as follows:
- Variation in knowledge and understanding of DoLS legislation and in the quality of training
- Poor quality mental capacity assessments and best interest decision making
- Delays and backlogs at a local authority level and providers not effectively escalating applications when needed.
CQC acknowledged in the report that, “It is understandable that during the pandemic, particularly at the beginning, attention shifted onto managing COVID-19. Providers faced a significant challenge in balancing adhering to government guidelines on infection prevention and control and managing the risk presented by COVID-19, with ensuring that they met any existing individual’s DoLS conditions or new DoLS needed.” However, the report also stated that in adult social care, CQC saw a sharp fall in the numbers of DoLS application notifications that were made. Providers are required to notify CQC without delay when the outcome of an application for a DoLS authorisation is known, including when authorisation has not been granted.
CQC stated that some providers have found it challenging to balance DoLS and COVID-19 restrictions. The report stated that, “… we continue to be concerned that lack of understanding about DoLS is having an impact on providers’ confidence about whether restrictions introduced in response to the pandemic amounted to a deprivation of liberty or not. Better training is needed to improve staff knowledge and understanding of DoLS and the MCA, and their importance in protecting people’s human rights.”
CQC takes compliance with DoLS and the MCA 2005 very seriously. If there is any doubt about whether a person is being deprived of their liberty, providers should err on the side of caution and make a DoLS application to the local authority for a standard authorisation (and notify CQC at the same time). If a deprivation is unlawful it can lead to CQC enforcement action or potential claims for compensation. Unlawful deprivation of liberty is also a safeguarding issue and can lead to local authorities taking action against providers, such as placing an embargo on a service.
Providers will have further clarification as to how the MC(A)A 2019 will work in practice once the Regulations and Code of Practice have been drafted. In the meantime, providers will need to continue using the existing DoLS framework to ensure that appropriate authorisations are in place.
If providers need any advice or assistance in relation to issues arising from the current DoLS system or the LPS our specialist solicitors can help. Please contact Ridouts Professional Services Ltd using the email address firstname.lastname@example.org or by calling 0207 317 0340 and tell them you are a member of HCPA to get a discount.