Belinda’s immediate thoughts about the new proposals about deprivation of liberty

I just listened to the Community Care webinar from the Law Commission’s Tim Spencer-Lane. It was useful, although my Chat box disappeared as soon as I clicked on full screen mode and would not come back. I logged out and back in again, in order to have a voice!

The basic thrust of the proposals is a widening of the notion of the need for special scrutiny for all packages involving elements of restriction, not merely deprivation of liberty. This would be called Protective Care. There was a definite undercurrent to the presentation, I thought, to the effect that the Law Commission thinks that this is  what should have been happening anyway, because of the special provisions in the MCA about restriction of liberty having existed since 2007, and judicial reviews long before then, and since, stressing the central importance of the care plan as the source of the council’s accountability for proper social work decision-making. And I would have to agree, I am afraid…

Now that the Care Act provides for more due process rights, within a linear customer journey, each with its rules and ‘involvement’ rights attached, and for formal s25 statutory care plans, the Commission may look as if it is proposing to broaden the burden for the sector, but in fact it is not, in my view.

Restrictions, or restraints within a care package, let alone full-on deprivation of liberty for a person’s best interests, should always have been properly assessed for, and care planned for, so that it could be specifically commissioned, and thus paid for properly, in my view.

I would wish to say as politely as possible that if the need for legal literacy and defensible decision-making in the statutory sector had ever been embraced and resourced by the DH, elected Members in councils and the leaders of the social work sector, and by the TCSW, the independent reviewer of adult social work education policy for the future, or the universities offering qualifying degrees, we might not have had to have had a House of Lords Select Committee slam the whole sector for non-implementation of the MCA, or be facing another 18 months of uncertainty about deprivation of liberty.

The link for the report Law Commission is here:

Providing protective care to people unable to consent to treatment

But for now, these are the questions that came to my mind, straight away, during the webinar.

  • Will the Approved Mental Capacity Practitioner (a new role and title for the BIA, as of now) be allowed to be from the same council as the commissioner of the care?
  • Is it appreciated that the approval of an AMHP, and presumably an AMCP, too, can and could always be pulled, by the authority which has granted it? I have seen this happen in practice when the independent thinking of the AMHP (an ASW, actually), upset the council?
  • How are medical professionals going to be obliged to do the independent objective assessments that are planned, outside of the hospital system? That is, in supported living, shared lives, people’s own home settings etc? It’s not in the GP contract, and it won’t be timely if it were just to be done under ‘co-operation’ provisions?
  • Clearly, since ECHR jurisprudence requires medical expertise for lawful article 5 deprivation of liberty, but not for article 8 mere impingements on liberty, that can be justified, we will still need to distinguish between restriction and deprivation, and the webinar did not discuss how we might do that. Indeed, it seemed to envisage objective medical expertise for the scrutiny of all protective care, and that would have an enormous impact on NHS time. Extending it eats into the s5 cloak of legal protection based on best interests decision making by ordinary individuals, as long as the MCA Code has been followed, and there would be debates between families and doctors as to whether what was going on was protective care or merely supportive care. This has undertones of the shenanigans that played out nationwide when there was a distinction between housing related tenancy support in supported living settings and ‘care’ inputs properly seen as adult social care, does it not?!
  • I groaned inwardly at the proposal to streamline advocacy from all statutory routes to entitlement, before Care Act independent advocacy has even got started, but can see it makes sense. But what I did not understand was whether people in protective care regimes would get advocates even if they are NOT unbefriended (ie they have got relatives being best interests consultees, already), in the new consolidated approach to advocacy?
  • I was not able to understand the difference between a regime for so-called supported decision making and the appointment at common law of someone of a person’s own choosing, to help them make decisions, or even make one for them – that is informal agency, and all you need for that to be viable and valid is the mental capacity to appreciate that the decision you are facing is a difficult one where you could do with some support or decision making in particular circumstances. Short of actual substituted decision making, it’s just another person’s opinion, and of some help. If it’s actual decision making for the person, it’s informal agency. If the decision is in the sphere where the person lacks capacity, there is best interests consultation of all interested others, already provided for, and the decision maker is the agency that is going to pay for the implementation of the decision. And we don’t need a new regime for any one of these three types of inputs. But as soon as someone loses capacity to appreciate that they have asked someone else to make decisions, they need to have made an LPA, (the welfare sort does not spring up, until the person lacks capacity for the issue in question) and that regime already exists, albeit that it is costly and complex. So what is the justification for supported decision making, and where is it supposed to FIT?
  • I would be really keen to understand what would become of guardianship, which is of course, already a regime for protective care, with rights of challenge to a tribunal?
  • My eyebrow shot up at the idea of the CQC inspectors regulating compliance with this new regime’s requirements, even if they did get ‘a lot more smart’ (Tim’s words, not mine!). I believe, (forgive me if I am wrong as a matter of the facts) that their staff don’t routinely come to safeguarding meetings, supposedly because of conflict of interest concerns regarding their regulatory role. So I am boggling at the thought of how they will regulate providers regarding deprivation of liberty. And their reticence in this regard is complicated by the underlying tension behind the Scope regulations and government policy for community based living. Is there any example of the CQC actually having prosecuted a provider of decent, albeit very secure and protective supported living, for not being registered as a care home, I wonder, since the Alternative Futures litigation, way back when? I would be amazed, if there had been – because of course it has been government policy since the mid 1980s and the early iterations of Valuing People (now superseded) that people lacking capacity are best cared for in the community – where they can get Housing Benefit and income support to pay for more of the necessary care, rather than in registered care homes, where the environment can actually be managed by a provider owing a 360 degree duty of care.

I think we need some truth in social care policy, before we spend more money on a replacement for the DoL safeguards…but I shall look at the consultation documentation with interest. We have 4 months to do it, ladies and gentlemen. Another holiday with a laptop in tow, appears to be on the horizon!

Belinda Schwehr

About Belinda Schwehr

Belinda has been a lawyer (both a barrister and then a solicitor advocate), a law lecturer at a university, and a trainer and consultant specialising in Adults' Social Care legal framework issues. She first became interested in social care law when the Gloucestershire case was running between 1995 and 1997, never having met a real live social worker, before that point! She regards social care as the most interesting field of law she has ever been associated with, combining aspects of public law, the regulation of power, economics, management skills, EU law, procurement, criminal law, incapacity law, land law and contract, and doesn't expect ever to tire of the stuff. If the Care Act is going to be the last word on it, however, she would like to think it was worth all that sitting there and getting fatter whilst thinking about how it should all hang together! She does glass craftwork and house renovations for a hobby, has one son in his twenties, and about 5000 online friends... soon to be 50,000, with any luck!

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