The Liberty Protection Safeguards: are care homes ready for the new regime?

We examine the requirements for care home managers and analyse the potential pitfalls contained in the new legislation.

Executive summary

Whilst care home managers may have breathed a sigh of relief when the Government made amendments to the Mental Capacity (Amendment) Bill (‘the Bill’) which meant that the obligations and responsibilities for those running care homes looked less onerous, the nuts and bolts of what must be done still remain both detailed and potentially complex. In this short update, we examine the requirements for care home managers and analyse the potential pitfalls contained in the new legislation.

Where are we now?

We wrote an update back in December 2018 on the thinking behind the Bill, the background and the Government amendments to the initial draft following widespread concerns being expressed on a number of the provisions.

Since then, the Bill has continued its passage through Parliament, passing its Third Reading in the House of Commons on 14 February 2019. The Bill is currently in what is known as parliamentary ping pong, as it passes between the Commons and Lords. It is due to return to the House of Lords, for what may be the final time, on 24 April 2019.

In the Bill’s initial draft, for those in care homes, the care home manager would have been responsible for carrying out the various assessments required for the new Liberty Protection Safeguards (LPS). As we reported in our last update, this has been changed such that care home managers will now make one assessment under the new system. Nevertheless, this single assessment remains detailed and complex with a number of specific requirements which will need to be considered in each and every case.

The legislative provisions

Schedule 1 to the Bill is a new Schedule which is to be inserted as Schedule AA1 to the Mental Capacity Act 2005 and Parts 1 and 2 detail the authorisation of arrangements enabling care and treatment in a deprivation of liberty setting.

The ‘responsible body’ – for these purposes, either the CCG or local authority – can authorise arrangements in respect of someone living in a care home if the care home manager carries out an assessment consisting of number of component parts. Crucially, the manager must provide the responsible body with a written statement which includes that the cared-for person is aged 18 or over, that the arrangements give rise to a deprivation of the cared-for person’s liberty, that the care home manager has carried out ‘consultation’ (more on this below) and the statement must include full reasoning and be accompanied by a record of the assessments on which the determinations on capacity and medical assessments were made together with evidence of the consultation mentioned above and a draft authorisation record, the provisions of which are also prescribed, at paragraph 24 of Part 2 of the new Schedule.

The assessment, requiring a determination that the cared for person lacks capacity to consent to the arrangements and that the person has a mental disorder, must be carried out by someone with the appropriate experience and knowledge and – crucially following a Government amendment to its original plans – may not be carried out by anyone with a connection of any kind prescribed by regulations, with a care home.

The nature of the consultation process which care home managers must carry out is also prescribed. Not only must this involve the cared for person but also anyone named by the cared for person as someone to be consulted about arrangements of this kind, anyone engaged in caring for the cared for person or interested in their welfare, any donee of a lasting or enduring power of attorney granted by the cared for person, any deputy appointed by the court and, finally, any appropriate person and any independent mental capacity advocate concerned.

Implications and next steps

While the legislation continues its parliamentary progress back and forth across the Palace of Westminster, it may be tempting for those who are going to be affected by the new regulations to assume that the new regime remains some distance away. The Government has, however, signalled its determination to push on with this Bill with a view to implementation of the new scheme to replace the much-maligned Deprivation of Liberty Safeguards next year.

Care homes will be affected and the burden of the assessment process, albeit not to the extent first envisaged, for the individuals living in them will fall on the shoulders of the managers, with whom responsibility will rest. It is definitely not too early for managers and homes to begin the preparations for the new world order, which will be upon us in the form of the LPS before we realise, now.

Update – The Bill was agreed by the House of Lords on 24 April 2019 and will shortly receive Royal Assent.

For further information about Weightmans LLP or to discuss any of the issues in this update, please contact Morris Hill, Associate, 0151 242 7990, morris.hill@weightmans.com or Ken Slade, Associate, 0151 242 7953, ken.slade@weightmans.com.

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