This note provides an overview of the Department of Health and Social Care (non-statutory) guidance ‘Adult social care: our COVID-19 winter plan 2020 to 2021’. It discusses the key issues for local authorities, and in particular the interplay with the wellbeing principles of the Care Act 2014, including managing a potential conflict in terms of the wellbeing of both care home residents and those in the community with care and support needs as regards prevention of C-19. It also looks at the implications of the winter plan for the right to respect for family and private life, addressing the tension between the imperative to protect the health of social care users (and the social care workforce) and the need to respect the family life and private life rights of those who might be subject to protective restrictions. Finally, it explores the impact of the winter plan on deprivation of liberty safeguards, in particular in relation to testing and 14-day isolation requirements.
This paper, which is aimed at those working in hospital settings as well as local authorities, seeks to provide a summary of the law governing situations where an individual is potentially deprived of his or her liberty in hospital. The paper has been entirely updated from the earlier version (dating from June 2015), in particular to take into account the decision of the Court of Appeal in Ferreira (R (LF) v HM Senior Coroner for Inner South London & Ors [2017] EWCA Civ 31), which has significantly changed the approach to take to deprivation of liberty where physical healthcare needs are being met in the hospital setting.
Final report from the Law Commission’s review of the Mental Capacity and Deprivation of Liberty Safeguards (DoLS), which considered how the law should protect people who need to be deprived of their liberty in order to receive care or treatment and lack the capacity to consent. The review found that DoLS were overly technical and legalistic, often failed to achieve any positive outcomes for the person concerned or their family, and could not deal with the increased numbers of people considered to be deprived of their liberty following the Cheshire West ruling. The report provides recommendations for the reform of the legal framework and proposes that the DoLS should be replaced by a new scheme, the Liberty Protection Safeguards. The proposed scheme would cover a broader group of people, including any setting that might give rise to a deprivation of liberty and would also cover 16 and 17-year-olds. A draft Bill attached to the report provides details of the new scheme. The draft Bill also includes amendments to other parts of the Mental Capacity Act to provide increased protection for people whose rights to respect for their private and family life and their home, whether or not they risk being deprived of their liberty. The Law Commission also recommended that the Liberty Protection Safeguards should be accompanied by the publication of a new Code of Practice covering all aspects of the Mental Capacity Act. An impact assessment and a summary of the report are published alongside the final report.
This book is designed to help conduct robust assessments whilst at the same time enabling professionals to provide optimum outcome for those under their charge. It also aims help achieve these goals: set the threshold of understanding which is necessary for every assessment; clearly define seemingly ambiguous phrases such as ‘unwise decisions’ and ‘the functional test’; recording assessments ensuring they stand up to legal scrutiny.
This framework incorporates and links to a number of other competence standards, for example the National Safeguarding Competence Framework and the BIA capabilities. It is divided by staff group and is focused on what different groups need to demonstrate under each of the 5 principle areas. These statutory principles are: presumption of capacity; helping the person to make their own decision; the right to make unwise decisions; best interests; and less restriction. The MCA is relevant to any staff of any public service, whether directly delivered by statutory agencies (e.g. Local Authority, NHS, Police, Fire service, etc.) or via third sector care providers (e.g. private or charitable organisations providing health, social care or other public service support services).
This leaflet clarifies how people can plan ways, with their families, to ensure their wishes are taken into account if through illness they cannot take decisions for themselves.
Outlines the key parts and processes of liberty protection safeguards.
This is a final stage impact assessment for the Mental Capacity (Amendment) Bill. It
evaluates options for reforming the Deprivation of Liberty Safeguards (DoLS) system.
Sets out in detail the Government’s provisional view of each individual proposal, broadly agreeing with the Liberty Protection Safeguards model. As the Government has commissioned a review into the Mental Health Act, proposals that relate to the interface between the Mental Health Act and Mental Capacity Act will be considered as part of that review. The Government also wants to ensure that Liberty Protection Safeguards fit with the conditions and future direction of the health and social care sector, so it will continue to work through the detail of the recommendations and engage further with stakeholders particularly on implementation. The Government will bring forward legislation to implement the model in due course.
An overview of the Mental Capacity (Amendment) Bill, and the amendments made during the Bills Lords stages, ahead of its Second Reading in the Commons on 18 December 2018. The aim of the Bill is to reform the process for authorising arrangements which enable people who lack capacity to consent to be deprived of their liberty (for the purpose of providing them with care or treatment). This briefing summarises some of the main concerns raised by Peers about the Bill during its passage through the Lords. These include: the definition of deprivation of liberty; the role of care home managers in carrying out assessments, with particular concerns raised about potential conflict of interests in care homes and independent hospitals; the appointment and role of Independent Mental Capacity Advocates (IMCAs); and provisions relating to reviews by Approved Mental Capacity Professionals (AMCPs) and referral to the Court of Protection.
Interim statement providing an update on issues that emerged from the Law Commission’s consultation on the Deprivation of Liberty Safeguards (DoLS), which set out a replacement scheme called ‘protective care’. The paper sets out the background to the review of DoLS. It then outlines the ‘protective care’ scheme described in the consultation paper, which consists of three aspects: the supportive care scheme, the restrictive care and treatment scheme, and the hospitals and palliative care scheme. It then summarises the main messages from the consultation, which received 583 written responses and involved the Law Commission attending 83 events across England and Wales. The results of the consultation found a case for replacing the DoLS. Most consultees found the DoLS to be overly legalistic and found it had failed to deliver improved outcomes for people who lack capacity and their carers. Most consultees welcomed the new provision proposals, but concerns were raised about the financial implications. During the next phase of the review, the Law Commission will produce draft legislation and a final report. The document invites views on the new name for the scheme.
Interim statement providing an update on issues that emerged from the Law Commission’s consultation on the Deprivation of Liberty Safeguards (DoLS), which set out a replacement scheme called ‘protective care’. The paper sets out the background to the review of DoLS. It then outlines the ‘protective care’ scheme described in the consultation paper, which consists of three aspects: the supportive care scheme, the restrictive care and treatment scheme, and the hospitals and palliative care scheme. It then summarises the main messages from the consultation, which received 583 written responses and involved the Law Commission attending 83 events across England and Wales. The results of the consultation found a case for replacing the DoLS. Most consultees found the DoLS to be overly legalistic and found it had failed to deliver improved outcomes for people who lack capacity and their carers. Most consultees welcomed the new provision proposals, but concerns were raised about the financial implications. During the next phase of the review, the Law Commission will produce draft legislation and a final report. The document invites views on the new name for the scheme.