DoLS replacement won't safeguard residents or reduce admin backlog warns care sector

The Liberty Protection Safeguards are set to replace Deprivation of Liberty Safeguards in 2020, but a group of 100 care organisations have called for a halt to the Bill, saying it will dilute existing safeguards, give care home managers too much responsibility and worsen the applications backlog.

The care sector has repeatedly raised its concerns over the Mental Capacity (Amendment) Bill, claiming smaller care homes could close due to the additional burden, as a number of functions carried out by local authorities will be carried out by care homes under the new legislation.

Due to the current DoLS (Deprivation of Liberty Safeguards) backlog thousands of residents in care homes are potentially being locked up whilst their assessments are still due to be carried out.

Government figures from the period 1 April 2017 to 31 March 2018 stated 125,630 Deprivation of Liberty Safeguards (LPS) were uncompleted by year end.

Dr Rhidian Hughes, chief executive of the Voluntary Organisations Disability Group (VODG) said: “People are currently being deprived of their liberty in health and social care services without the correct authorisations in place.

“That is plain wrong and should be resolved by funding the existing system to work properly until acceptable new measures can be introduced. Whilst Government has driven through legislation to save money we remain committed to all efforts that uphold human rights safeguards.”

Judy Downey, chair and chief executive of the Relatives & Residents Association is concerned that "depriving people of their liberty by removing independent professional judgments will leave thousands of older people without protection."

She added: "Too many people are already cut off from their family and friends as a result of bannings and restrictions without proper legal safeguards. The Bill will exacerbate these failings."

‘Unanimity in the sector that three years for renewals is too long’

The most common deprivation of liberty for residents in a care home is when a person with dementia is restricted from going outdoors because they are deemed to have a lack of mental capacity and they may harm themselves in some way.

DoLS were brought in to provide a correct process to go through in situations like this to ensure people weren’t being unnecessarily “locked up”.

But the process has become so gridlocked that the Government sought to reform DoLS in 2018 by publishing the Mental Capacity (Amendment) Bill, otherwise known as LPS.

Charities and care organisations have voiced concerns about how those with dementia, mental illness and other care needs could potentially be locked up for longer in care homes under the new proposals.

Many feel the changes have been rushed through without enough consultation from the care sector itself.

In an open letter to health and social care ministers on 24 April 2019, over 100 organisations, including charities, care home groups and home care companies called on the Government to:

• Pause the passage of the Bill and work with the sector to ensure there is no erosion to human rights protections for people who rely on essential care services

• Be more transparent about the process and evidence which has informed DHSC’s consultation(s) with the sector and the significant departure from the original Law Commission recommendations

• Resolve the conflict of interest regarding care managers responsible for business delivery and processes that could lead to a deprivation of liberty

• Co-produce the draft legislation and adequately fund the changes it will bring, given our sector is already at financial breaking point.

One of the most criticised elements of LPS is that of the automatic renewal. This, say detractors, gives unprecedented power to care home managers over the freedom of individual residents.

Unlike DoLS, which requires a fresh authorisation every time an existing one expires, the LPS system makes subsequent deprivation of liberty authorisations automatically renewable if certain criteria are in place.

After the first renewal of one year, subsequent renewals can be made of up to three years. Many charities have warned against this.

On 17 January 2019, Labour MP Barbara Keeley echoed their concerns by saying: “There is unanimity in the sector that three years for renewals is too long. Even the Alzheimer’s Society is worried about the impact it could have. The power on renewals lies with the managers of independent hospitals or care homes, who are vested with an interest in renewing the authorisation and keeping the cared-for person as a client.”

Backlog of applications means 'many die before they are assessed'

When DoLS was first added to the Mental Capacity Act there were differences of opinion over what deprivation of liberty was and what it meant. It was also quite limited and the numbers of people in DoLS were originally much less than predicted.

However, subsequent changes to DoLS over the years have led to a massive backlog of DoLS applications, and the Government conceded DoLS needed to be streamlined. LPS is meant to be the new streamlined process.

Steven Richards is the director of Edge Training and has consulted with the Lords on many aspects of the new Bill. He believes the current backlog also has an impact on assessing the care needs of the individual. He says: “A lot of people have been waiting for a year in the backlog and because of their age, quite often many die before they are assessed.

“One of the main problems with the backlog then is that actually people take a long time to be seen, and the longer you’re in the care home, the longer before you are going to get discharged home, so one of the views of advocates and other people is that if people are seen quicker there is the chance that when they are assessed, people will sometimes say that they shouldn’t have been moved into the care home in the first place, and more could have been done in the community.”

Some major changes to who will be included under LPS have huge implications and is likely to result in a much higher number of applications than under DoLs despite attempts to streamline the applications process with automatic renewals.

For example. those receiving care at home will also be subject to LPS, as will 16 and 17-year-olds, rather than just those that are 18 or over as previously.

DHSC say 'care home managers will never conduct or authorise assessments themselves’.

For most of 2019 the Bill has been going backwards and forwards between the House of Lords and the House of Commons. It is the definition of the deprivation of liberty that has caused such disagreement between both Houses. Mr Richards says: “There was a definition of Deprivation of Liberty, which they now say they are taking out. From the Commons side, they said ‘we won’t have one – just like DoLS we won’t have one in the legislation, and we will have an explanation of the law in the supporting Code of Practice.”

Martin Green, chief executive of Care England, however, is critical of the definition being sidelined to the Code of Practice rather than appearing in the main Bill itself.

He said: “This is a classic case of putting the cart before the horses as many of the concerns should have been sorted out in primary legislation. We remain very exercised about the number of contentious practice areas that, we are told, will be clarified and addressed in the new Code of Practice.”

The Department of Health and Social Care (DHSC) has, however, defended its ‘urgent’ reforms’ and stress that care home managers ‘will never conduct or authorise assessments themselves’.

A DHSC spokesperson said: “This Bill has vulnerable people at its heart – currently they face a backlogged and bureaucratic system which must be reformed urgently, and we have consulted extensively with the sector and individuals and carers on the changes.

“Care home managers have a role to play in collecting information and identifying a need for safeguards, as they do already, but will never conduct or authorise assessments themselves.

“We will consult on a comprehensive code of practice for the Bill and are working with a wide range of organisations to ensure these reforms truly promote and protect vulnerable people’s liberty.”