The law on mental capacity and deprivation of liberty is about to change. This could have a massive impact on how care services support autistic people and the processes you have to follow.
The law protecting the right to liberty of people who ‘lack capacity’ to make decisions, which includes some autistic people, has been broken for years. Back in 2014, our charity intervened in the landmark Cheshire West case, which had huge implications for Deprivation of Liberty Safeguards. The ruling found that many people who ‘lack capacity’ were living in places that were depriving them of their liberty – without any authorisation.
The ruling meant that the law needed to change. The Government asked the Law Commission to take a look and devise a new system which would cover more settings, like supported living. We supported these efforts and welcomed many of the proposals the Commission made in 2017.
But we were really concerned when we finally saw the Government’s proposals for the Liberty Protection Safeguards last summer. This would have given care home managers a greater role in decisions about living arrangements for people who ‘lack capacity’. We believe strongly that this is wrong. The process must be independent of people who run services, so there’s never a conflict of interest between their financial interests and their duty of care to the person they support.
The proposals also used the term “unsound mind” as a definition of who they would apply to, which is incredibly outdated and insulting language – and didn’t include enough rights to advocacy. We were also dismayed that the person being cared for wasn’t included in an expanded list of people who should be consulted when deciding whether living arrangements are in someone’s best interests.
We weren’t the only ones worried. Other charities and care providers, lawyers and campaigners all raised their concerns.
I’m happy to say that, as a result, the law that passed recently has improved markedly and the role of care home managers has been clarified. The Government has said that they will play no part in the assessing someone’s capacity, but they will have to consult relatives and appointees. It’s now written into law that the “pre-authorisation review” of assessments cannot be done by someone connected to a care home or hospital – avoiding another conflict of interest. The new system will also create a new process for authorising deprivations of liberty for 16 and 17 year-olds. And we’ve made sure that the person themselves must be consulted.
It’s not without faults. Although the vast majority of care providers will do everything they can to consult honestly with the individual, we’re concerned that a few bad apples may be able to exert undue influence. We’re also worried that deprivations of liberty could be authorised for periods of up to three years. This is much too long.
These remaining concerns are why it’s really important that the Government is also producing a new Code of Practice – because that’s where the detail will be. If the new one is going to succeed, every person who has a role needs to know exactly what they should do, and when.
The role of people working in care services, which includes much of the readership of this magazine, is pivotal. You will be applying the new system.
In the autumn, the Government plans to consult on a draft of the Code of Practice. This is your chance to tell them if it gives you the information you need. It’s a once in a generation opportunity to get this vital system right, so everyone is able to ensure it works in the best interests of autistic and other people at their most vulnerable.