Replacing the DoLS regime - End in sight?

Published 17 May 2019

The long road to replacing the current Deprivation of Liberty Safeguards (DoLS) has just passed another major milestone, with the legislative framework for the new Liberty Protection Safeguards having now received Royal Assent.

With hospitals, CCGs and care homes all facing a much bigger role in the deprivation of liberty process than they do now, organisations need to be getting to grips with the changes to come.

We look at what the new Liberty Protection Safeguards will mean for your organisation and what you could be doing now to be getting ready. 

What does the new legislation look like?

The new Mental Capacity (Amendment) Act 2019 does not contain a definition of “deprivation of liberty”.  Instead we must continue to use the definition in Article 5 of the European Convention on Human Rights, as interpreted in case law (notably Cheshire West).

Under the new regime, a ‘responsible body’ will authorise an incapacitated person’s deprivation of liberty.  A deprivation of liberty arising in any setting must be authorised: this includes hospitals, care homes, the person’s own home, supported living arrangements and whilst transporting the person between specified places.

The identity of the responsible body will depend on the arrangements for the person’s care:

• If the person’s care is mainly delivered in an NHS hospital, the NHS Trust (as ‘hospital manager’) will be the responsible body;
• If the person receives NHS Continuing Healthcare (CHC), it will be the funding CCG; and
• Local Authorities will be the responsible bodies in all other scenarios, including care in independent hospitals.

An authorisation may last initially for up to 12 months, renewable at first for a further 12 months and then every 3 years.

An authorisation may be granted if:

• The person is aged 16 or over;
• They lack capacity to consent to the arrangements for their care/treatment;
• They have a mental disorder; and
• The deprivation of liberty is necessary to prevent harm to the person themselves (risk to others will not be grounds for an authorisation) and is proportionate to the likelihood/seriousness of that harm.

The authorisation process requires the responsible body to:

• Identify an appropriate person (who cannot be involved in the care in a professional capacity) to represent and support the cared-for person, or appoint an IMCA if there is no suitable ‘appropriate person’.
• Obtain assessments of the cared-for person’s capacity to consent to the arrangements and whether they have a mental disorder (both of which can be existing assessments), and an assessment of whether the deprivation of liberty is necessary and proportionate to prevent harm to the person themselves (which requires a fresh assessment). These assessments must be done by someone with appropriate knowledge and experience, but the legislation does not require them to be done by different people.  For care home cases, the responsible body can decide to delegate the arranging of assessments to the care home manager but the assessments themselves cannot be done by anyone connected with the care home.
• Consult with the cared-for person themselves, plus a range of others (e.g. anyone engaged in caring for the person plus the ‘appropriate person’, as above) to try to ascertain the person’s wishes and feelings about the arrangements for their care. In care home cases, the consultation can be carried out by the care home manager.
• Arrange a pre-authorisation review to verify that the three conditions of incapacity, mental disorder and necessity/proportionality are met. In many cases this can be done by someone within the responsible body’s organisation, provided they are not involved in the person’s day-to-day care (and have no connection with the care home if it is a care home case).  If, however, the incapacitated person is objecting to the care arrangements or if they are in an independent hospital, the pre-authorisation review must instead be done by an independent Approved Mental Capacity Professional (AMCP).
• Prepare a draft authorisation record, including details of the care arrangements plus dates for reviews and renewal. In care home cases, this task can be delegated to the care home manager, who then passes the draft authorisation record to the responsible body for approval.
• Sign off the authorisation record, which then authorises the deprivation of liberty.
• Once the authorisation is given, provide the person as soon as practicable with specific information about the authorisation, including their right to challenge the authorisation in the Court of Protection.
• Conduct regular reviews (as per timescales which should be set out in the authorisation record). Where the care is being provided in a care home, the responsible body can delegate reviews to the care home manager.

There is also provision for deprivation of liberty in an emergency.

The interface with the Mental Health Act 1983 will remain largely unchanged from the current position under the DoLS.  This means the Liberty Protection Safeguards route will not be open to some people, including those in hospital who are objecting to treatment for their mental health. 

Impact for your organisation?

NHS Trusts - Will for the first time be responsible for authorising deprivations of liberty for those who are being cared for mainly in an NHS hospital. In practice, this will mean Trusts having to set up a system (with associated leadership, policies and allocation of roles/responsibilities) for arranging assessments, consulting, doing pre-authorisation reviews (and deciding when these should be done by an AMCP) plus providing information about authorisations and reviewing them as required.

Independent Hospitals - Will not be able to ‘self-authorise’ in the way that NHS hospitals can because - after changes made to the bill as it went through the legislative process - independent hospitals cannot be responsible bodies. Where care is provided mainly in an independent hospital, the authorisation process will need to be undertaken by the Local Authority (generally for the area where the hospital is located). Details of how this will work in practice should emerge as part of the supporting regulations/Code of Practice.

CCGs - Will, like NHS Trusts, be responsible for authorising deprivations of liberty for the first time, with their new duty applying to CHC funded cases, whatever the setting. They too will therefore need to establish systems to support the carrying out of assessments, consultation, pre-authorisation reviews etc, although CCGs will be able to delegate some elements of the work to care home managers where the care is being provided in a care home.

Local Authorities - Should see a lightening of their load because, instead of having to authorise all deprivations of liberty as they do now in their role as ‘supervisory body’, they will no longer be responsible for authorising cases where the care is provided mainly in an NHS hospital or is CHC funded. With their remit still covering all non-CHC funded cases in care homes, people’s own homes, supported living and independent hospitals, however, there will still be plenty of work to be done in adapting current processes to the new system.

Care Homes - Whilst care homes will not be doing the actual authorising under the Liberty Protection Safeguards, the responsible body (i.e. either the Local Authority or, if the care is CHC-funded, the CCG) can decide to delegate much of the work needed to get to the stage of authorisation to the care home manager - including organising assessments (although not actually doing them), carrying out consultation, putting together the draft authorisation record and reviewing the authorisations once granted. Again, the details of how this will work in practice are likely to be covered in the regulations and Code of Practice to come.

What next?

Although we now have the final version of the legislation itself, there is still a lot of flesh to be put on the bones about how the legal framework will work ‘on the ground’. 

This further detail will take the form of accompanying regulations and a Code of Practice which are likely to contain, for example, guidance on how to decide whether someone is being deprived of their liberty plus more detail on the operational side of the authorisation process - e.g. who can do the assessments, who can conduct the pre-authorisation reviews, when to involve an AMCP, what happens in the event of a dispute etc.

The next step is therefore likely to be the publication of draft regulations and a draft Code of Practice for consultation.  There are no firm timescales for this yet, but we might be looking at summer/autumn this year.

What is the timescale for all this coming into effect?  Commentators have anticipated Spring 2020, but this appears optimistic.  More information about the proposed timetable for implementation is expected soon.

How to start getting ready?

Whilst there is still a way to go before the new system becomes a reality, it is certainly not too soon to start planning for its implementation.

Steps you could be taking now include:

• Ensure board-level awareness that NHS hospitals and CCGs will become ‘responsible bodies’, with new responsibilities around deprivation of liberty;

• Identify a Liberty Protection Safeguards lead within your organisation who can track progress of the new framework, raise awareness and start preparations for changes to internal procedures;

• Consider which policies and procedures will need to be amended to reflect the new framework and your organisation’s new responsibilities;

• Consider what training will be needed for whom, and who might deliver it;

• Start to think about who within the organisation might conduct the assessments and reviews, plus consider pooling of resources locally for this - e.g. via local MCA leads and other assessors currently used by Local Authorities;

• Consider how information about Liberty Protection Safeguards authorisations could be held centrally in your organisation in order to demonstrate compliance to the CQC.

How we can help

Our national team of Mental Capacity Act and Court of Protection specialists can provide responsive, practical advice to commissioners and providers across the health and social care sector on all aspects of the law in this area, including:

• Support with the implementation of the Liberty Protection Safeguards framework, including briefing notes for your executive teams setting out the changes and their impact, bespoke training on the legal framework as it applies to your organisation and review of policies/procedures to ensure compliance with the new framework.

• Advice on whether a DoLS authorisation (or, once the new legal framework is in place, Liberty Protection Safeguards authorisation) is necessary and steps needed to ensure any deprivation of liberty is lawful.

• Support and representation in Court of Protection challenges to DoLS (or Liberty Protection Safeguards) authorisations.