The Mental Capacity (Amendment) Bill – reducing or shifting the burden of costs?

The Mental Capacity (Amendment) Bill is currently making its way through parliament.

In its current form, the Bill seeks to change the existing system of state authorisation of deprivations of liberty for people who lack the requisite mental capacity to consent to the same - the Deprivation of Liberty Safeguards (DOLS) - and replace it with Liberty Protection Safeguards (LPS).

We explore some of the practical and financial implications of the proposals, for local authorities, the NHS, and the private sector.

Existing problems

The amendments seek to address problems encountered with DOLS, which include:

  • DOLS were drafted to apply only to care homes and hospitals, however the law applied more widely to cover cared-for persons who were in supported living accommodation or living at home with support from their family.
  • Acute practical and financial impact on the public sector, particularly for local authorities acting as the “Supervisory Body” - training and engaging Best Interests Assessors to carry out the multiple assessments and teams of administrators to process the applications (and renewals).
  • Local authorities and Clinical Commissioning Groups (CCGs) inevitably drawn into Court of Protection litigation via s.21A of the Mental Capacity Act 2005, albeit with justification a lot of the time.
  • Backlogs of applications - leading some local authorities to judicially review the Secretary of State. Local authorities and CCGs were required to prioritise the applications they made, resulting in thousands of cared-for people unlawfully deprived of their liberty.

Authorising - how LPS will seek to lift this burden under the current proposals

The organisation where the arrangements “are mostly carried out” will undertake the authorising and be the “responsible body” (RB). If the cared-for person (P) is in hospital, that will be the hospital managers, but if P is not in hospital then the CCG (if P is funded by NHS continuing healthcare) will be the RB, and in all other cases it will be the relevant local authority.

The RB will likely have a lot of work to do, with paragraphs 14-24 of the Bill setting out a detailed list of requirements, including:

  • Being satisfied that the authorisation conditions are met (i.e. that P lacks capacity, has a “mental disorder” and that “arrangements are necessary to prevent harm” and are “proportionate”).
  • Carrying out a consultation.
  • Being satisfied that an independent mental capacity advocate has been appointed/where necessary appointing one.
  • Where P is objecting to their care arrangements, being satisfied that a pre-authorisation review was carried out and that the person doing it (i.e. an Approved Mental Capacity Professional, which is a new role) has determined that the authorisation conditions are met and it is reasonable for the RB to conclude that those conditions are met.
  • Ensuring a draft authorisation record is prepared/revised.

It is likely that the RB themselves will provide this information, unless they decide that the authorisation should be determined differently where P’s “arrangements are care home arrangements”, in which case the care home manager is to provide a statement and supporting evidence.

Reduced or shifted costs?

Whilst aiming to reduce costs, the proposals appear rather to shift costs away from local authorities to the NHS and the private sector. Most local authorities and CCGs use the private sector to provide care/nursing home accommodation. If providers are under a legal obligation to prepare this information, this could potentially lead to costs being passed back to the public sector in the form of higher rates.

The government does not think so, stating “we assume no net change in costs to providers of authorisations and administration”, despite a new form and oversight process which it asserts removes the complexity, uncertainty and delay in the assessment being provided by an under-resourced system. That said, it seems entirely possible that the LPS will put more of an administrative burden onto care home managers/providers than the existing forms.

Comment

Under the proposals, Hospital Trusts and CCGs will have new costs in operating their new RB roles, which may well necessitate recruitment and training of staff by NHS organisations to fulfil the RB functions.

Local authorities will also still have a substantial administrative burden in checking the information supplied by care home managers. The Government’s Impact Assessment takes the existing cost provided by the Law Commission (£310) and halves it to £155 to “account for the fact that it will be less intensive than under DoLS at present”. However, time will tell whether this is correct.

An authorisation could last for up to 12 months, be renewed for up to 12 months thereafter, but after that each renewal could last for up to three years. This will be welcomed by a lot of carers and local authorities/CCGs, especially where a person’s lack of mental capacity is not in doubt, care arrangements are clearly in a person’s best interests and least restrictive. It can ultimately obviate the need for renewals on an annual basis (or less) and over time may reduce backlogs and cost to some extent.

The government has clearly recognised the cost of administering and granting authorisations. However, it remains to be seen whether the Bill (once enacted) will result in an overall saving, and it seems likely that the NHS will inescapably have a new cost and administrative burden to bear.