Important Update - Mental Capacity (Amendment) Bill

Related Sector: Health & Social Care

Last week saw the third reading in the House of Lords of the Mental Capacity (Amendment) Bill which will introduce the Liberty Protection Safeguards (LPS) to replace the current Deprivation of Liberty Safeguards (DoLS).

Background

The Bill has undergone some serious scrutiny since being introduced into the House, most notably around the role of the care home manager, and very importantly the Approved Mental Capacity Professional.
Lord O’Shaughnessy, the junior health minister, announced that the Government would amend the legislation in the commons to extend the scope of when an AMCP would be required to consider a case.

The widening of the AMCP role going forward is most certainly to be welcomed.  

The new AMCPs will be knowledgeable and experienced practitioners with specialist training in the Mental Capacity Act 2005, much like the current Best Interest Assessor.  Most likely to be social workers, they will provide an independent check on whether the conditions for a deprivation of liberty under the new Safeguards have been met. This will be known as a pre-authorisation review.

The conditions are like those within the current DoLS system:

• The person lacks capacity to consent to the arrangements giving rise to the deprivation of liberty; and
• They have a mental disorder; and
• That the arrangements are necessary to prevent harm to the person, and proportionate to the seriousness and likelihood of that harm

As it stands, a Best Interest Assessor is required in every case.  Under the current bill, it was proposed the new AMCP would only be required to conduct the pre-authorisation reviews arranged by the responsible body, in cases where it is reasonable to believe that the person objects to the arrangements. Although the Bill did make mention that the responsible body may appoint an AMCP in other cases, they would not be required to.  So, in standard cases the responsible body could use a person independent of the person’s care who would not require specialist training to the pre-authorisation review.

Concerns were raised that this would not provide sufficient protection for a whole group of vulnerable people who were not objecting to their arrangements but were nonetheless still deprived of their liberty.

During the Lords’ debate, mention was made of extending the scope of the AMCP role to ensure all persons in independent hospitals received independent scrutiny.

The Outcome - Revised proposals to the scope of the AMCP role in LPS model

Proposed amendments included cases where:

• Relatives are objecting to the arrangements;
• The cared for person was prohibited from making contact with particular people;
• The cared for person was subject to high levels of restraint;
• The arrangements involved the administration or prescription of covert medication;
• The arrangements involved the treatment for a mental health disorder in hospital;
• There are exceptional circumstances;
• There is a dispute between the responsible body and the pre-authorisation reviewer (where this was not an AMCP); and
• A care or health worker or loved one has informed the responsible body that the cared for person was objecting to their arrangements (whistleblowing) if the care home had not notified the responsible body.

Although there was debate as to whether some of the criteria were already covered by the Bill, Lord O’Shaughnessy stated that the Government would bring forward amendments to extend the AMCP role further when the Bill reaches the House of Commons.

He stated “it is critical to get right the role of the Approved Mental Capacity Professionals and when they should review cases under the LPS system.  AMCP’s will be vital part of the system.  They will be qualified, knowledgeable and experienced professionals.  It is intended that they will act independently, both, of the care provider and the responsible body.”

“We think it is necessary to go beyond specifying that those in independent hospitals can see an AMCP and to think of other cases as well”

What it means for BIAs going forward

As it stands, the new role of the Approved Mental Capacity Professional (AMCP) will be a vital part of the new LPS system, and one which it will be critical for the Government to get right. Significant scrutiny has been given at the Lords around this exciting new role.

At the moment as the Bill looks, BIAs are ideally positioned to transition into the role of the AMCP under the new qualification route (yet to be identified in the regulations).

However, the Bill will now be read in the Commons where we’d expect there to be further amendments which again may change what the Bill and the AMCP role will look like.

At Bond Solon we strive to ensure that those we train are suitably qualified, knowledgeable and skilled to enable them to practice to required standards. We will ensure that we are at the forefront to advise and assist you and your workforce on what is required in undertaking this transition.

We will keep you abreast of developments and will be ready to deliver your training needs when the Bill receives Royal Assent.

Zak McNally
Health and Social Care Manager
zak.mcnally@bondsolon.com

This article was first published on Monday 3rd December 2018.