NHS “needs to prepare” for new deprivation of liberty rules, highlights Kennedys

We have highlighted that NHS trusts, private hospitals and clinical commissioning groups (CCGs) need to prepare for new responsibilities under the regime governing the deprivation of liberty of those without the mental capacity to consent to it.

The Mental Capacity (Amendment) Act 2019 received Royal Assent today which will change the existing system of state authorisation for people who are deprived of their liberty, introducing new liberty protection safeguards.

This will see responsibility shift away from local authorities in many instances to hospitals, CCGs or the private sector.
The organisation where the arrangements “are mostly carried out” will undertake the authorising and be the “responsible body to authorise any deprivation of liberty”. If the cared-for person (P) is in an NHS hospital, that will be hospital managers, but if not, then it will be the CCG, the local authority, private hospital or care home.

Although the Code of Practice is yet to be released, the responsible body is likely to have a lot of work to do to ensure organisations are lawfully depriving P of their liberty.

Rob Tobin, a healthcare partner in our Cambridge office, says: “Whilst there is a need to reduce current delays and deadlock in the system, the Act does not answer the practical questions of what makes a deprivation of liberty and instead shifts time and resources away from local authorities to the NHS and the private sector.”

Amanda Mead, also a healthcare partner in our Cambridge office, says: “Most local authorities and CCGs use the private sector to provide care/nursing home accommodation. At present, care homes rely on the local authority to undertake deprivation of liberty authorisations but, going forward, a care home manager will be the responsible body. The process requires the determination of a person’s capacity, mental disorder and the necessary and proportionate nature of any measures being proposed/taken. 

“With care home providers already struggling, it is likely that the additional administration costs will be passed back to the public sector in the form of higher care rates. Smaller care home organisations may be unable to accept this delegated duty or indeed have a care home manager with the qualifications to ensure appropriate protections are in place.”

Amanda adds: “Hospital trusts and CCGs also face costs in resourcing their new responsible body roles, which will likely necessitate recruitment and training of staff to fulfil the function. This will go beyond the current referral to the local authority, with the CQC no doubt looking for evidence of a robust internal system with appropriate checks to ensure authorisation is not just rubber stamped but appropriately reviewed. An accompanying code of practice that the government is drafting should significantly aid interpretation of the obligations, and this is likely to be an evolving process with further challenges as to the actual definition of a deprivation of liberty and the need for robust checks in place to protect the vulnerable.”

We are preparing a training programme to ensure that clients understand the new rules. Rob concluded: “Safeguarding the liberty of vulnerable people is one of the most serious responsibilities that hospitals, CCGs and local authorities have. It is vital that preparations are made for the new regime to prevent judicial or regulatory criticism in the future.”