Government scraps 'contentious' care home managers' role for liberty safeguards

The government is scrapping plans for care home managers to be responsible for arranging assessments and gathering information that determine whether residents should be deprived of their liberty in care homes, under the Liberty Protection Safeguards (LPS).

The care home managers’ proposed role will not be implemented by the government when the new system for authorising deprivations of liberty in care comes into force in April 2022.

The government’s proposals, in relation to care home managers’ role in LPS, had faced criticism from the care sector and MPs during the passage of the Mental Capacity (Amendment) Act 2019, which enacts the LPS.

LPS will replace Deprivation of Liberty Safeguards (DoLS) and was supposed to go live on 1 October 2020 but were delayed until April 2022 by the care minister.

The care home managers’ role was intended to gather information on whether a person lacks capacity to consent, has a mental disorder as defined by the Mental Health Act 1983 and that the arrangements are necessary to prevent harm to the person.

As well as writing a mental capacity assessment, giving medical evidence of unsoundness of mind and writing a statement on why specific arrangements are necessary, care home managers would have had to provide a statement to the 'responsible body' - local authority - explaining their opinion as to whether a resident needs an independent mental capacity advocate to stand up for their rights.

The local authority would then decide whether the deprivation of liberty should be authorised.

Care home manager proposals 'always been contentious'

Critics of the government’s proposals included care home managers who argued it would place an increased workload burden on them, would require training to do the role and it would pose a potential conflict of interest.

In response to criticism, the government amended the legislation, leaving it up to the ‘responsible body’ to decide if the care home manager should carry out the role and ensure managers cannot commission anyone connected to the home to conduct LPS assessments.

The decision was made in a meeting on 13 October of the government’s steering group for implementing the LPS, with the meeting’s minutes published on 10 November by the Department of Health and Social Care (DHSC).

Attended by the National Care Forum, Skills For Care, ADASS and other stakeholders, the meeting’s minutes stated: ‘DHSC officials acknowledged that the role of the care home manager in the MC(A)A2019 has always been contentious. They explained that the Government has heard representations from across the sector, both for and against this role, and considered its potential very carefully.

‘The Government has decided not to implement this aspect of the MC(A)Ain England, for now. The relevant provisions in the Act will therefore not be commenced in April 2022.

‘The care home manager role was originally designed so that people who know the person and understand their wishes and feelings, could lead the LPS process, with the added benefit of reducing the burden on local authorities and CCGs.

‘These aims are still valid, but the Government has decided that now is not the right time to introduce the role. Instead, the Government will focus on introducing all other aspects of the LPS.’

However, the minutes also stated the government will keep the case for the role ‘under review’.

Approved mental capacity professionals (AMCPs) will be responsible for carrying out ‘pre-authorisation reviews’ in specific cases to check the conditions for depriving the person of their liberty have been met.

Nurses, social workers, speech and language therapists, psychologists and occupational therapists will be eligible for taking up AMCP roles, as is the case with the current best interests assessor (BIA) role under the DoLS (which will be abolished, alongside the DoLS, when the LPS comes into force).

Barrister: Care home managers put in 'impossibly conflicted position'

Responding to the government's decision, barrister and Mental Capacity Act expert Alex Ruck Keene, practicing at 39 Essex Chambers, wrote in his blog post:

'[The care home manager proposal] caused deep unease amongst many – including many care home managers who felt that they were put in an impossibly conflicted position. “It also looked like, in many cases, simply being unworkable because of the need to provide so many restrictions upon whom the care managers could call upon that it would have ended up being more complicated and more expensive than simply having the responsible body coordinate the assessment process.”

The government aims to have a public consultation on the draft regulations and code of practice in Spring 2021 which will run for 12 weeks, it stated ‘allowing sufficient time for those that are affected, including those with learning disabilities, to engage properly’.