May 2019

The Mental Capacity (Amendment) Act 2019: Key Changes and Implications for Frontline Practitioners in Statutory Social Care and Health

Introduction

On the 16th May 2019 the Mental Capacity Act (Amendment) Bill was granted Royal Assent, meaning the Bill has now become an Act of Parliament (law).

At the time of writing this briefing details about the date of implementation for the new Act have not been announced, but it could be as early as spring 2020.

The Act will be accompanied by a single new Code of Practice which will replace both the current Code of Practice and the Deprivation of Liberty Safeguards Supplementary Code of Practice. Work on this is currently underway.

The main reason for the new Act is to replace the current Deprivation of Liberty Safeguards with a whole new authorisation framework, namely the Liberty Protection Safeguards.

This briefing paper highlights the key differences between the two frameworks, and the practice implications for those practitioners involved in making arrangements for care and/or treatment.

After reading the briefing practitioners are encouraged to identify any learning needs they may have and to seek support in a timely way to ensure they are prepared for the changes.

Anyone with responsibility for wider implementation of the new Act should be mindful that this briefing is a summary only and are advised to read the Mental Capacity (Amendment) Act 2019 in full.

Key Differences

	Under DoLs	Under LPS
Authorisations for people who are 18+ and receiving care or treatment in a care home or hospital	All authorised by the Local Authority.	The body responsible for authorisation (the responsible body) is setting dependent: Care home: Local Authority Hospital: CCG Independent hospital: Local Authority
Authorisations for people who are 16+ living in a community setting	All authorised by a relevant court of law.	The body responsible for authorisation (the responsible body) is setting dependent: Care home: Local Authority Hospital: CCG Independent hospital: Local Authority
Best Interest Assessors	Best Interest Assessors involved in all authorisations.	Best Interest Assessor role replaced by the Approved Mental Capacity Professional role (AMCP).
Different circumstances	All appointed a Best Interest Assessor.	Definition of ‘complex’ introduced: Disagreement about Best Interests, the person is unhappy with arrangements or the setting is an independent hospital. Complex: Appointed an AMCP.  Non-complex: Evidence to be provided by either the practitioner arranging care or treatment, or the care home manager depending on setting.
Deprivations in more than one setting	Separate process and authorisations required for each setting.	One authorisation can include arrangements across all settings that form part of the person’s normal care or treatment arrangements.
Review	No mechanism for review. When an authorisation expires a new process is required.	For people with long term needs, a proportionate review is to take place at 12 months, and then again at 24 months. At this point if there have been no changes no further review is necessary for 3 years.

Implications for Practitioners

As the table of key changes above highlights there are significant implications for practitioners involved in arranging care or treatment (i.e. Care and Support Planning or Care Planning).

New Steps in the Care and Support or Care Planning Process

The table below sets out a summary of the new steps that will need to be incorporated into the Care and Support or Care Planning process, along with the key skills and knowledge required by the responsible practitioners.

Step	Skills and Knowledge Required
Proactively consider as part of the planning process whether a person is likely to be deprived of their liberty by the care or treatment being proposed.	Knowing and understanding what constitutes a deprivation of liberty. Ability to assess mental capacity.
If so, consider if there is another way to provide the care or treatment that does not do so-if so revise the plan accordingly.	Knowledge of all available options. Ability to lead discussions. Positive risk assessment.
If not, establish that the proposed arrangements are in the person’s Best Interests.	Ability to apply the Best Interests principle and act as Decision Maker.
If the person is 16/17 establish whether anyone with parental responsibility is able to consent to the deprivation-if so no further authorisation is needed.	Understanding of parental consent and current case law.
If not, and the person will not be receiving care or treatment in a care home, gather and provide the required evidence for submission to the responsible body. (If the person will be moving into a care home the care home manager must gather and submit evidence.)	An understanding of the conditions upon which a deprivation of liberty can, or cannot be authorised. Confident to request evidence from a qualified medical professional. Able to consult effectively with any carer, Lasting Power of Attorney, Deputy or advocate involved.

The Evidence to be Gathered and Submitted

The following is a list of all the evidence that practitioners must submit to the responsible body:

• Evidence of the person’s mental capacity  (either from a recent assessment or by completing an assessment);
• Evidence of the person’s mental disorder (from a suitably qualified medical professional);
• Evidence of consultation with all of the following, wherever practicable and appropriate to do so:
  
  
  • Anyone named by the cared-for person as someone to be consulted about the arrangements of the kind in question;
  • Anyone engaged in caring for the cared-for person or interested in the cared-for person’s welfare;
  • Any donee of a lasting power of attorney granted by the cared-for person;
  • Any deputy appointed for the cared-for person by the court;
  • Any appropriate person and any IMCA concerned.
• Evidence should be submitted to the local authority alongside a prepared draft authorisation record.

Guidance about the process of gathering and submitting the above evidence will be provided in the revised Code of Practice.

After Submitting Evidence

After submission the responsible body will review the evidence provided.

If the evidence is inadequate the practitioner who provided it will likely be asked to review it and resubmit, so it is important to provide good evidence so as to prevent any unnecessary delays in authorisation.

The responsible body will then make a determination about the complexities of the circumstances, based on the evidence provided and the statutory definition of ‘complex’. If it deems the circumstances complex an Approved Mental Capacity Professional will be appointed to carry out any further assessment or evidence gathering required.

If the circumstances are not complex the responsible body will proceed to determine whether, based solely on the evidence provided by the practitioner, the conditions upon which an authorisation can be granted have been met or not.

These conditions are:

1. The cared for person lacks the capacity to consent to the arrangements
2. The cared for person has a mental disorder (as defined in the Mental Health Act)
3. That the arrangements depriving the person of their liberty are necessary and proportionate

Next Steps

As per the introduction to this briefing, practitioners are encouraged to identify any learning needs they may have and to seek support in a timely way to ensure they are prepared for the changes.

Anyone with responsibility for wider implementation of the new Act should be mindful that this briefing is a summary only and are advised to read the Mental Capacity (Amendment) Act 2019 in full.

Training from the Signis Group

The Signis Group will be delivering Liberty Protection Safeguards workshops in autumn 2019, for the following roles: 

• Social Care Practitioners in Local Authorities
• Health Practitioners in CCG’s
• Care Home Managers

The workshops will support delegates to gain a wider understanding of the changes and develop the necessary skills required for their role.

To find out more about the workshops or to express an interest please contact us.