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  • Writer's pictureTeam Nellie

Liberty Safeguarding and the Mental Capacity Amendment

Updated: Apr 21, 2023

The upcoming amendment to the Mental Capacity Act (2005) is going to change the way social care works in the UK. In its current form,

the amendment replaces the deprivation of liberties safeguarding (DOLS) assessments and best interest decision with a simpler, more efficient liberty safeguarding decision.

The problem with the original DOLS was there was no thought into how a small piece of case law could cause it to apply to not only a majority of individuals in nursing and residential homes but also in hospitals and eventually the community. DOLS impacted thousands of people, which was never anticipated. The workload on specialists (Best Interest Assessors) was phenomenal and the backlog became huge. So the government has decided to simplify the system with the introduction of Liberty Safeguarding.

The current amendment as it goes through the houses is of concern though, firstly it places the responsibility of the decision making firmly onto the setting provider, so care home staff could end up ultimately responsible for the decision to deprive someone of their liberties. As a social worker, I can already foresee the safeguarding concerns mounting up in adult safeguarding teams, where over-zealous care homes ensure everyone has liberty safeguarding paperwork completed “just to be sure”.

Currently, the amendment bill doesn’t put any emphasis on a need for the decision maker to discuss the care provision with either the individual or their family leaving the system open to abuse by untrained or inappropriate decision makers.

The biggest concern, however, is if the responsibility is on the placement provider then ultimately they may also carry some legal responsibility and whilst the MCA (2005) does protect the decision maker from liability (if it due process has been followed) the changes do run the risk of placement providers becoming caught up in safeguarding issues, family disputes and possible legal issues (who knows what that first piece of case law will bring up!)

At Nellie we are working alongside colleagues in different fields to create a package of services to ensure placement providers can access independent support in completing these decisions, ensuring they are making decisions not only in the best interests of the individual but also maintaining best practice when it comes to decision making. We will have to wait to see what the final amendment looks like but if you would like to discuss our service or have input into how that service can best be adjusted to meet your companies needs then give us a call on 01476 210567

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