Adult Social Care 2017 LocalGovernmentLawyer 18 In all other cases there would be a power to refer cases to an Approved Mental Capacity Professional. The Approved Mental Capacity Professional’s role is to determine whether or not to approve the arrangements. They must meet with the person, and can consult other key individuals. The written approval of the Approved Mental Capacity Professional would enable the authorisation of arrangements by the responsible body. The Approved Mental Capacity Professional cannot be someone who is involved in the day-to-day care or treatment of the person. Local authorities would be responsible for the approval and ensuring there are sufficient numbers of Approved Mental Capacity Professionals. A regulation- making power allows, amongst other things, bodies such as the HCPC to be prescribed to approve courses for Approved Mental Capacity Professionals. The draft Bill does not specify which professionals could or could not undertake the new role; this would be a matter for the Government. The Liberty Protection Safeguards aim to put Approved Mental Capacity Professionals in a similar position to Approved Mental Health Professionals. They would act “on behalf” of the local authority but would be independent decision-makers who could not be directed to make a particular decision. The authorisation (Chapter 11) An authorisation can have effect immediately, or up to 28 days later. The responsible body must produce an “authorisation record” which must include matters such as details of the arrangements authorised. An authorisation does not provide statutory authority to deprive a person of their liberty; instead, a new section 4AA of the Mental Capacity Act would simply provide a defence to civil or criminal liability in respect of acts done pursuant to an authorisation. An authorisation can last for an initial period of up to 12 months and can be renewed for a second period of up to 12 months and thereafter for periods of up to three years. A responsible body can renew an authorisation, rather than initiating a fresh authorisation, if it reasonably believes that: • the person continues to lacks capacity to consent to the arrangements; • the person continues to be of unsound mind; and • the arrangements continue to be necessary and proportionate. An authorisation ceases to have effect (before the expiry date) if the responsible body if it knows or ought reasonably to suspect that: • the person has, or has regained capacity, to consent to the arrangements; • the person is no longer of unsound mind; or • the arrangements are no longer necessary and proportionate. However, in the case of people with fluctuating capacity, the Liberty Protection Safeguards enable arrangements to remain in place during limited periods of capacity to consent or object to the arrangements, provided that: • the periods of capacity are likely to last only for a short period of time, • the person remains at all times “of unsound mind” for the purposes of Article 5, and • the authorisation of arrangements remains necessary and proportionate. Reviews of an authorisation (Chapter 12) The responsible body must set out in the authorisation record the fixed dates or prescribed intervals for reviews. The responsible body is required to keep an authorisation under review generally, therefore putting it in a position to undertake a review at any time in between the planned review dates if circumstances change. There would be a duty to hold a review: • on a reasonable request by a person with an interest in the arrangements which are authorised; • if the person becomes subject to the Mental Health Act; or • if the responsible body becomes aware of a significant change in the person’s condition or circumstances. Rights to advocacy and an appropriate person (Chapter 12) Under the Liberty Protection Safeguards there is a duty to appoint an advocate unless there is an appropriate person to represent and support the person to whom the arrangements would apply. This duty applies when the responsible body is proposing to authorise arrangements. An “appropriate person” cannot be someone who is engaged in providing care or treatment to the person in a professional capacity or for remuneration. The appropriate person must be appointed to act as such unless they do not consent, or the person whom they would represent and support does not consent or (if that person lacks capacity to give or withhold consent) it would not be in their best interests to be represented or supported by that other person. The appropriate person has a right to advocacy support. If there is no appropriate person, an Independent Mental Capacity Advocate must be appointed. Under the draft Bill, the responsible body must appoint an advocate unless the person does not consent, or (if the person lacks capacity to consent) unless being represented by an advocate would not be in the person’s best interests. This is intended to ensure that advocacy is provided automatically and on an opt-out rather than an opt-in basis. Rights of legal challenge (Chapter 12) Under the Liberty Protection Safeguards the right of legal challenge is to the Court of Protection. But the Law Commission further recommends that the Government should review this matter (as part of its existing programme of reform) and consider whether a tribunal might be more effective. Under the Liberty Protection Safeguards there is a duty to appoint an advocate unless there is an appropriate person to represent and support the person to whom the arrangements would apply. Under the Liberty Protection Safeguards the right of legal challenge is to the Court of Protection. But the Law Commission further recommends that the Government should review this matter and consider whether a tribunal might be more effective.