I had intended my next post to be about ordinary residence. But I haven’t quite finished that one yet and the latest news about LPS implementation inspired (read as angered) me.
For those of you that haven’t seen it yet, the government has announced that it still intends for the Mental Capacity Amendment Act 2019 to come into force in October 2020, and that it intends the Code of Practice to be published ‘in the coming months’.
Now it is true that the Code of Practice will not change the principles laid out in the legislation. But the legislation is, quite frankly, vague. So we are all waiting with baited breath for the detail to be set out in the Code of Practice and regulations before the real implementation work can begin.
I am, thankfully, too young to have been involved with the implementation of the DoLS scheme. At that time, I was at university and blissfully unaware of the Mental Capacity Act 2005 and the intricacies of community care legislation. But I was heavily involved in the implementation of the Care Act 2014 at my local authority and I remember the rush we had trying to get ready for that. And sadly I don’t see this being much more straightforward, and we are working to a shorter time frame.
Now the government seems to be under the impression that the new system will be simpler, that it cuts out administration and that it relies on information that is already in existence so there will be little in the way of additional work created. To me, and to those I work with, it does appear to be wishful thinking. And that’s the polite way to put it.
Even if every local authority, clinical commissioning group, NHS Trust and care provider had a brilliant understanding of the Mental Capacity Act and was fully embedding it in their practice, this would be a big job. Experience tells we, as a system, are not quite there yet.
So here is just a flavour of what local authorities need to do to implement the change in legislation. It is not an exhaustive list.
Identifying the numbers of customers falling within the scope of the system. Since the new scheme will not be placement specific, local authorities need to analyse all of the care packages in place in residential care, supported living and their own homes. And, of course, the placements for young people aged 16 and 17 who will also be within scope. And yes, local authorities have records of how many of these care packages it has put in place, but that doesn’t mean there is a decision specific capacity assessment and an assessment of whether these individuals are deprived of their liberty in place for each one. That is a big job in and of itself.
Train staff. Since the system does not rely on requests from providers, or additional independent assessments, all frontline staff need to be at least aware of the scheme and when and how to act. And then there are the staff members who will need to carry out the assessments, for whom a detailed analysis of the restrictions in place and the proportionality of those restrictions is not currently core business.
Train Approved Mental Capacity Professionals, including analysing how many staff members will need to be trained.
Work with partners on the transition. Some areas are looking at joint working arrangements, but others intend to work separately and will need to arrange a detailed handover. Getting the governance and agreements in place for either option will not be easy. You think haggling over price with a builder is daunting, believe me that has nothing on the information sharing, governance, delegation of powers, liabilities and cost sharing agreements that need to be in place for any partnership or joint working between public authorities.
Engage with providers so that they understand the system and local authorities will get the information they need to be able to assess and authorise the arrangements. Care plans are a big issue, and if care plans are insufficiently detailed, this system will not provide any protection against arbitrary restrictions.
Update contracts with providers of care and support across all levels of support as well as advocacy provision and information and advice services.
All of this is being done at a time when services are being reduced and staff are under increasing pressure. It would be a full time job just co-ordinating and managing a project like this, but many authorities just don’t have the money for that and instead are relying on people (like me) doing this on top of their very busy day jobs.
To have everything in place by October even if all of the information was available now would be a significant task. Without even drafts of the regulations and Code of Practice, its enough to give people like me nightmares.
Now call me a sceptic if you wish, but I don’t see October as viable for implementation of a safe, operational system. I wholeheartedly understand and support moves to make the rights of vulnerable people a priority. But rushing this process carries the risk of doing just the opposite if systems aren’t in place and aren’t sustainable.
So let’s be loud about this, guys. Better a system that works, than another rush job. Because we all saw how well Deprivation of Liberty Safeguards worked out…
In case it isn’t obvious from the fact I still haven’t identified the authority I work for, the views expressed on this blog are my own opinion and not the opinion of that local authority