By the time you read this, Clinical Commissioning Groups will have gone the way of PCTs, SHAs and RHAs, and Integrated Care Systems/Boards (ICS/ICBs) will be the new game in town. How will this affect responsibilities for Court of Protection issues, and what practical problems might there be?
From 1 July 2022, ICBs will largely simply inherit the obligations and liabilities of the CCGs they replace. That will include the responsibilities relevant to deprivation of liberty and applications to the Court of Protection.
And in reality, we appreciate that the people doing the key roles in ICBs on 1 July 2022 are very likely to be the same people as were doing it on 30 June, in many places.
Even so, there are changes coming, and it is worth taking stock what the ICBs face, and how to approach it.
NHS CHC National Framework – DoLS and DoL in the community
With effect from 1 July 2022, there will be a new National Framework for Continuing Healthcare (CHC) in force.
[Here’s another article we have written on the Framework in more detail]
For now, the Framework emphasises the obligation on ICBs where an individual is in receipt of CHC funding and they lack the mental capacity to consent to arrangements for their accommodation, or care and support:
“…the ICB must ensure that the arrangements they commission are lawful and compliant with the Mental Capacity Act. This means that, where the person is placed in a care home or hospital and they will be subject to restrictions that constitute a deprivation of their liberty, the care provider must request authorisation from the relevant local authority (or in some specific circumstances, the Court of Protection) for this deprivation of liberty. The request for Deprivation of Liberty Safeguards (DoLS) authorisation should be made by the care home or hospital to the local authority before the placement is made”. (Para 345)
Remember of course that DoLS will be replaced by the Liberty Protection Safeguards (see below).
In the meantime, in cases where there is a challenge in the Court of Protection (a s21A case) to a DoLS authorisation for a care package that is CHC funded, the ICB will have to play a part in the proceedings.
The ICB’s obligations go beyond those who are in care home and hospital:
“Where the individual who lacks the relevant capacity is in receipt of NHS Continuing Healthcare in their own home, including tenancy based accommodation (e.g. supported living), and is subject to restrictions that may constitute a deprivation of liberty, the deprivation of liberty cannot be authorised using the Deprivation of Liberty Safeguards (DoLS) process, instead authorisation must be obtained from the Court of Protection. In these circumstances, because the ICB is the primary funding authority, it is responsible for applying to the Court of Protection for this authorisation and should seek their own legal advice for this reason. The ICB is responsible for its own associated legal costs, but is not responsible for the legal costs of the individual concerned. However, the ICB should ensure that the individual has access to legal advice in their own right”. (National Framework, July 2022, para 346)
So the ICB, just like CCGs have been, is obliged to ensure that any CHC package in the community that might amount to a DoL is referred to the Court of Protection for authorisation.
Note that this also applies to other cases where the situation may be outside the scope of DoLS, for example for 16-17 year olds.
It is not OK to wait for the Liberty Protection Safeguards (LPS) before taking community DoL cases to court. Any DoL now that is unauthorised is unlawful, and potentially gives rise to a compensation claim, as well as – more fundamentally – a lack of respect for that individual’s rights.
And let’s not kid ourselves that LPS will be in place any minute… With the consultation on the Draft Code of Practice closing on 14 July 2022 (having just been extended by a week), the government is likely to respond and finalise the Code late this year / early 2023. It then needs 40 days before Parliament, and after that there is a commitment to at least six months, and more likely 9-12 months, for transition planning and training before it goes live.
It seems to us that the very earliest it could come in is October 2023, but that is ambitious and would clash with the Care Act reforms which will also hugely increase the burden on social workers (with an estimated 105,000 more Care Act assessments required every year ). Our money is on April 2024 for LPS implementation, which would also give the benefit of a start in a new financial year and give the ICBs a full financial year of operation to prepare for this additional role.
Liberty Protection Safeguards
As you will know, when the Liberty Protection Safeguards do replace DoLS, ICBs will have all the current responsibilities of CCGs and, crucially, much more.
- For cases in which there is a DoL for a patient where the arrangements that deprive them of their liberty are CHC funded, the ICB will become the Responsible Body for the authorisation of that DoL under LPS (in place of the local authority, as it currently is, under DoLS).
- That will apply equally whether the patient is in a care home (that should currently be referred to DoLS) or their own home or anywhere else (that should currently be brought to court).
- There were around 54,000 patients eligible for CHC as at the end of 2021/22. It is not clear whether there is good data, locally or nationally, for the number who lack capacity to consent to the arrangements for their care and residence, in circumstances that amount to a DoL, but it seems likely that there will probably be some tens of thousands of cases nationwide for ICBs to authorise.
- The ICB will have new duties in the Responsible Body role and will need to get the right systems and policies in place, and the right staff with the right training in good time. We will continue to offer support with this, and it will become clearer as we get a final version of the Code of Practice after the current consultation. (For now, the best advice is to focus on getting the MCA right!).
- Notably, as they do under DoLS (s21A), under LPS the patient will still have the right to challenge any LPS authorisation in the Court of Protection (s21ZA) and this will still attract non-means tested legal aid. Given the wider group of people caught by LPS than by DoLS, you might expect those cases to increase significantly.
- And, in each Court of Protection case, the ICB may have to play a more active role than it sometimes does at the moment. Under DoLS, even if the CCG is funding the placement / package in dispute, the s21A appeal is against the DoLS authorisation given by the local authority as the supervisory body, and the LA often has to make most of the running in the litigation. That will change in s21ZA cases under LPS where the challenge is against an authorisation where the ICB not only funded the package but also authorised it, as the LPS Responsible Body.
Finally, it is not only DoL cases that need to go to the CoP, of course.
There are times when issues around medical treatment, or safeguarding are brought to court (or should be) by CCGs.
The most prominent of these at the moment are cases involving COVID vaccination, where the patient cannot make a decision about this for themselves (often involving older patients with dementia, or young adults with a learning disability) and there is a dispute over whether vaccination is in their best interests.
In practice such applications are brought to court by the relevant CCG on the GP’s behalf at the moment, rather than the treating GP.
After 1 July, those applications will be just as important and urgent (the courts have repeatedly criticised delay in bringing such applications to court to resolve disputes), and we wonder whether the ICBs – at much greater scale – will readily have the same visibility of such frontline clinical issues.
That may not be such a challenge to start with, when responsibility is likely to continue to sit at “Place” level, in line with current CCG footprints, but as decision-making and responsibility is scaled up and centralised within the ICB, as seems likely to happen in time, it will be important not to lose sight of Court of Protection cases about individual patient care.