In a development that our local authority readers will already be aware of, but which has not yet had wide currency, with effect from 1.4.13 with the abolition of Primary Care Trusts in England, local authorities will assume the role of supervisory bodies for those deprived of their liberty in hospital, by virtue of the amendments to MCA 2005 contained in paragraphs 133-136 of Schedule 5 to the Health and Social Care Act 2012. As at the time of writing, no order has been made by the Secretary of State under s.306 of that Act identifying the date of 1.4.13, but the Department of Health has confirmed that this will be the material date. Secondary legislation making further consequential amendments will be laid before Parliament in advance of that date.
The identity of the local authority will be determined in similar fashion to that in respect of care homes, i.e. the local authority for the area in which the person is ordinarily resident or where the hospital is resident.
As explained in a fact sheet issued by the Department of Health, it will be affording limited additional funding to local authorities to support them in the extension of their statutory role, emphasising in so doing that ‘[h]ospitals will remain responsible as managing authorities for compliance with the DOLS legislation, for understanding DOLS and knowing when and how to make referrals. Hospitals remain responsible for ensuring that all staff in hospitals are Mental Capacity Act (MCA) compliant. Clinical Commissioning Groups (CCGs) will oversee these responsibilities; and be responsible for training and MCA compliance. All CCGs must have a named MCA lead and MCA policies to support their responsibilities.’ SCIE has also issued detailed guidance upon best practice in the transitional period running up to 1.4.13.