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26 April 2019 0 Comments
Posted in Health & Social Care, Opinion

Game, set, match… well, almost

Author headshot image Posted by , Senior Associate

After an energetic game of ping pong between the House of Commons and the House of Lords, the Mental Capacity (Amendment) Bill was approved by the House of Lords on the 24 April 2019, which means it is now just waiting for Royal Assent before becoming law.

This new Act was intended to improve the current deprivation of liberty regime, which was widely viewed as unfit for purpose, and create an alternative, commonly known as the Liberty Protection Safeguards. Many of the Law Commission’s original proposals made to Parliament were not incorporated into this new Act, for example, allowing advance consent to confinement. Some readers will be pleased to learn that the Government also did not take forward the Law Commission’s proposal to introduce a new tort of unlawful deprivation of liberty actionable against private care providers.

One major difference to the Law Commission’s proposals versus what was finally approved by the Government relates to arrangements in care homes. Whereas the commission’s proposals would have seen care home managers obliged to arrange relevant assessments and taking any other necessary steps before an authorisation could go to a Responsible Body (“RB”), now the RB will determine the extent to which the care home manager will lead on the assessment process.

Who are RB’s? Well, in summary, that all depends. If the arrangements are in a hospital, the RB would be the ‘hospital manager’ (so, the NHS Trust), in an independent hospital it would be the local authority or LHB, where the arrangements are via CHC it would be the CCG or LHB and in any other circumstances it would be the local authority.

Take away points

  • Arrangements can be authorised which enable care or treatment of a person (over 16) that give rise to a deprivation of liberty. Importantly that care can be occurring in any or multiple settings and can even include transport arrangements.
  • Arrangements cannot be used to authorise the restriction of contact between the vulnerable person and family and friends or the delivery of care or treatment.
  • There will be 3 conditions which will need to be met before arrangements can be authorised:
  1. Capacity assessment.
  2. Medical assessment.
  3. Necessary and proportionate test.
  • There will be a pre-authorisation review and this stage allows for the possibility that some arrangements will be challenged.
  • In respect of care home arrangements (applying to those over 18), the RB would choose which pathway to follow. There are two options:
  1. The care home manager leads the process.
  2. The responsible body itself arranges the authorisation.

For care home providers it appears much of their fate will be in the hands of the RB and in many ways only time will tell the extent to which those bodies will and will want to delegate to care home managers. However, preparation for the possibility that care home managers will be expected to be actively involved in the assessment process will be necessary by care home providers.

The future

It is most likely there will be a transition period with a possible introduction date of the Act in Spring 2020. We are still waiting for the necessary secondary legislation to provide greater details on what will be sought, in terms of knowledge and experience, from those conducting assessments. In particular a Code of Practice will also need to be drafted and approved. That means that detailed training of individuals would likely need to wait until such additional sources are available.

For help and advice in regard to to this new Act, please contact our expert Sara Isenberg on:

020 7842 1433     Email

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