DoLS reforms – draft Bill seeks increased obligations for care home managers

The Law Commission’s proposals published last year recommended the reform of the DoLS and replacing it with a new Liberty Protection Safeguards scheme (“LPS”). Amidst the Brexit turmoil, somewhat surprisingly, a draft Mental Capacity Amendment Bill was published at the beginning of July and is currently working its way through the House of Lords. If brought into force, the Bill will amend the Mental Capacity Act (“MCA”).

The draft Bill is noticeably different to the Law Commission’s recommendations and own draft Bill, as many of the Law Commission’s proposals have been ignored, at least for now.

What are the key points of the Bill?

1. The Act is narrowly focused on the implementation of a form of LPS but does not pick up on the many other points the Law Commission proposed. For example, the Law Commission’s recommendation to introduce means by which civil proceedings could be brought against the managers of private care homes, or independent hospitals, when arrangements gave rise to deprivations of liberties which were unauthorised under the MCA was not mentioned in the draft Bill. This will probably come as welcome relief to many care home managers.

2. The Bill does seek to introduce new and additional obligations on care home managers. It proposes a noticeable shift in the level of responsibility expected from managers rather than local authorities. For example:

• care home managers will need to provide detailed statements to local authorities incorporating a range of information the care home manager themselves would have had to accumulate ranging from the simple, confirmation that the resident is 18 or over to the rather more complicated, confirmation that the arrangements give rise to a deprivation of liberty.
• where assessments need to be carried out by others, it would be the care home managers who will need to arrange these.
• care home managers will need to undertake consultations with a range of relevant people, for example, anyone named by a resident as someone to be consulted, anyone engaged in caring for the resident or interested in the resident’s welfare as well as Deputies and donees of lasting powers of attorney.

This would result in a notable increase in the workload expected from managers, and increased expectations on them to make sometimes complex assessments and decisions.

It seems the draft Bill is trying to reduce the workload for local authorities but the current transference of work to care home managers is problematic given the existing demands placed on them.

3. It is crucial to remember this is the publication of a draft Bill which has currently only had two readings in the House of Lords. The passage of a Bill until it receives Royal Assent, and becomes law, can see it undergo multiple changes. It is our view that further changes are needed to ensure that there is an effective reform of the current DoLS system.

4. As a transition period for implementation will be needed, any changes are unlikely to be in place until late 2019 at the earliest, more likely 2020.