Liberty Protection Safeguards: The Mental Capacity (Amendment) Act 2019
Hannah Nicholas, Consultant/Solicitor Specialising in Adult Social Care & Healthcare Law
Hannah is a specialist in the law relating to mental capacity and deprivation of liberty. She trained at a large city council and found her passion for the law relating to Adult Social Care and Health during this time.
Subsequently Hannah worked for a niche specialist legal aid practice advising patients detained under the Mental Health Act 1983 and represented individuals in Court of Protection proceedings. Following this she practiced at a large international law firm advising NHS bodies on the law relating to Mental Capacity and Deprivation of Liberty amongst other things.
Now Hannah operates out of her own company, the Mental Capacity Cat Ltd and consults with local authorities.
"Poor terminology such as ‘Why are you imprisoning’ is why the DOLS system needed to change. Leads to negative permutations. The Mental Capacity Assessment Bill was a difficult process, lots of discussion. Brexit has created a delay with the Mental Capacity (Amendment Act), was originally meant to be Summer 2019, now October 2020. Hannah refers to the exit from DOLS as Dexit Why are CCGs & trusts going to be responsible, it’s important that they make their own decisions. An assessor will be appointed, similar to DOLS at the minute. Need to focus on the person & their best interests. Need clarity to family members who often get forgotten in the process. Been a lot of criticism of the Care Home Manager role. Need to equip the people around service users with knowledge. We are not quite sure about the changes for the Best Interest Assessor just yet. 1st October 2020 is when the change is happening. It is coming, you cannot hide from it, the Act is there so need to start considering it now.”
The Mental Capacity Act & Liberty Protection Safeguards
Rachel Griffiths MBE, Consultant, Mental Capacity Act and Human Rights
Rachel is a consultant in the Mental Capacity Act and human rights law, as they apply in health and social care practice. A registered social worker and former AMHP, she has been involved in implementing the MCA since its inception in 2007. Until April 2017, she was the Mental Capacity Act Lead at the Care Quality Commission.
She is part of the leadership group of the National Mental Capacity Forum, where she leads on ‘hearing the voice of the person,’ and works with Health Education England as subject matter expert on creating e-learning materials on mental capacity.
She is part of the DHSC LPS working groups on the new code of practice, and onworkforce implementation.
Rachel was awarded an MBE in the New Year Honours List in 2017 for services to vulnerable people.
"At the moment it is great that we are talking about Liberty Protection Safeguards. The sting in the tail of the LPS policy intention is the ‘cost effectiveness manner’. Clear example of this is the extra responsibility for the Care Home Manager, taking away some of the burden from the local authority. If you pin LPS back to the basic principles of the Mental Capacity Act & European Human Rights it all makes much more sense. I like the new integral role of the Care Home Manager, it may lead to a more proactive approach. The more people that come across IMCA the better it is. I do think we need to go back to the 5 principles of the Mental Capacity Act. Silence is not always consent. Courts not always the best place to make a decision about a person. Should be made on the ground with the people who know the individual. How can we look past the bureaucracy? These are the challenges to take back with you. I don’t like the terminology ‘challenging behaviour’ and it is no better to call it behavioural challenges. Don’t know when you will see the code of practice but you will see it eventually. Today’s conference will provide lots of signposts for you all."
Liberty Protection Safeguards: Ensuring effective use and compliance with the Mental Capacity (Amendment) Act 2019
Alex Ruck Keene, Barrister & Consultant, Mental Capacity and Deprivation of Liberty Project, The Law Commission
Alex Ruck Keene is an experienced barrister, writer and educator. His practice (at 39 Essex Chambers) is focused on mental capacity and mental health law (broadly defined). He has appeared in cases involving the Mental Capacity Act 2005 at all levels up to and including the Supreme Court. He also writes extensively in the field, editing and contributing to leading textbooks and (amongst many other publications) the 39 Essex Chambers Mental Capacity Law Newsletter, the ‘bible’ for solicitors (and others) working in the area.
Full PowerPoint Presentation