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JDC Asks...

Wed 15 May 2019

Journal of Dementia Care Vol 27 No 3 May/June 2019

JDC Asks...

The deprivation of liberty safeguards (DoLS) are being replaced under a new amendment to the Mental Capacity Act. But will it really be a step forward for people with dementia whose freedom is curtailed?

The deprivation of liberty safeguards (DoLS) are being replaced under a new amendment to the Mental Capacity Act. But will it really be a step forward for people with dementia whose freedom is curtailed?

 

Replacing the system of deprivation of liberty safeguards (DoLS) is an important reform, so it’s frustrating that those affected by dementia were given little say in the process. Half of those cared for under the current system have dementia, and they need safeguards that will protect them.  Under the new proposals, people with dementia could find themselves in a worrying situation, unable to voice concerns honestly about the care they receive because the managers responsible for providing care would also be the ones conducting the reviews. An independent person, with proper training, is needed to carry out these consultations.

The half-day of training proposed in the government’s impact assessment is inadequate and this shoddy attempt to prepare care home managers is extremely unfair on people with dementia. The fact that someone could be deprived of their liberty for up to three years is also deeply concerning. A person’s dementia can change rapidly, and this amendment could see someone trapped needlessly under lock and key. We urge the government to take action before the new system is implemented and ensure health and care staff receive appropriate training. Those affected must also be provided with information about how the changes may affect them or their loved ones.  Many vital details left out of the Mental Capacity Act (MCA) amendment have been promised in the code of practice. We urge the government to consult with people affected by dementia to ensure any new system properly protects and safeguards them when they are at their most vulnerable.

Sally Copley is director of policy, campaigns and partnerships at Alzheimer’s Society

 

Whenever DoLS are discussed, the focus is on the dreadful delays and their impact on care homes. Rarely do we hear about the impact on those in hospital or how hospitals fail to use the existing law.  There is nothing in the new procedures that has reassured me that the new system will improve professional knowledge and competence in relation to the MCA or the new liberty protection safeguards (LPS) that will replace DoLS.  A recent prominent case is that of R (Esegbona) v King’s College Hospital NHS Foundation Trust. In January, the high court held that the NHS trust’s failure to follow the DoLS regime and the MCA caused a patient to be falsely imprisoned for nine months. The trust omitted to refer the matter to the court of protection and was negligent. In my opinion, as the expert witness in the case, the trust did not respect or value Mrs Esegbona’s fundamental human rights, her right to a competent assessment of her mental capacity and wish to go home, and her right to have her case referred to the court of protection because there was a dispute about what was in her best interests. I have not read anything about the new amendment that will assist in educating professionals to ensure the human rights of those who lack capacity are respected. We still have a long way to go on the practical application the MCA in its totality, let alone the new LPS.

Lynne Phair is an independent consultant nurse and expert witness

 

The Law Commission worked hard and long and produced a carefully researched, costed, visionary report to steer us out of the harmful, massively expensive mess that DoLS had become and continues to be. It held out the prospect that the law – accompanied by the necessary money – would be directed to identifying vulnerable people who lacked capacity before it was too late. Some of this is retained in the new amendment to the MCA, but much has been lost. The idea was supposed to be that people would be identified before they crossed the threshold of admission to an institution for care or treatment. The individual’s best interests would determine the life they and their families would be enabled to lead, despite the restrictions and stresses inevitably associated with their condition. Persistent and lucid argument in the House of Lords, grudgingly accepted by the government, rescued some aspects of the Law Commission’s original vision. But still the focus has returned to people already in care.  Care home managers and independent hospitals have been relieved of the burden and conflict of interest placed upon them in earlier drafts. Some triumph! Implementation of the original vision would have had costs, but these were balanced against the advantages for individuals, families and wider society. It was by far a nobler and more elegant ambition than the cobbled legislation that is DoLS.  The Law Commission researchers came out of their offices and saw the world and its needs as they are. What a pity their analysis and advice has been so unkindly set aside. Prospects are grim for all of us.

David Jolley is honorary reader, PSSRU, University of Manchester and has been a consultant old age psychiatrist

 

Deprivation of liberty safeguards are no more! Hurrah for liberty protection safeguards! But will the latter (LPS) really deal with all the problems associated with the former (DoLS)? Awareness and application of DoLS has increased significantly over the last few years despite their complexity. Yet the government has chosen not to minimise disruption by making only minor changes to DoLS, nor has it been really ambitious and gone for wholescale reform by fusing the MCA, DoLS and the Mental Health Act. It will require considerable time and resources if the move to the LPS is to be properly implemented. But I wonder whether a government preoccupied with Brexit and still committed to “austerity” policies can be trusted on this score. And can care providers really be trusted to implement human rights safeguards via care plans, as the new scheme expects in most cases? Will they work out the difference between a restriction of liberty in a person’s best interests (not requiring LPS) and a deprivation of liberty that is “necessary and proportionate” (requiring LPS but not a best interests assessment)? The real risk is that we will end up back where we were when DoLS were introduced: a new scheme with new forms, processes and systems; a fair number of practitioners and services feeling confused, unprepared or not understanding the new arrangements; ongoing interface issues with other legislation; and no one quite sure how human rights are actually helping with a person’s care.

Toby Williamson is an independent health and social care consultant

 

Today many practitioners have no experience of working in a pre-Mental Capacity Act 2005 era. To them it is a normal way of seeing the world. Phrases like “best interests” and “two stage test” trip off the tongue. The pre-MCA world must seem like pre-history.  But there is much to learn about the implementation of the MCA as we enter its newly amended phase. First, the MCA was much wanted. Everyone involved in dementia care knew that the previous law was complicated with uncertainties that had to authorised by someone “important” like a doctor or a consultant. Most people happily confessed that it did not really impact on their practice. This sense of good will about the new MCA made for a very receptive audience for training and information provision.  Second, the MCA had a clear code of practice that actually arrived in hard copies (many care homes then had no IT) and training materials included a then state of the art DVD. This approach was continued by the Social Care Institute for Excellence whose video training and scenarios remain accessible and informative. Third, training was delivered in many places “on the job” in care homes and professional meetings which gave opportunities to talk about the MCA in practice and share experiences and information. When done in multi-disciplinary groups this was an added bonus. These three points would be very helpful to note in the new context. Implementation works better if people see the point of it, information materials must be accessible, and training is much more than imparting information. Applying it well in practice is the whole point.

Jill Manthorpe is director of the NIHR Health and Social Care Workforce Research Unit at King’s College London

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