In July 2018, the government published the Mental Capacity (Amendment) Bill which will replace the Deprivation of Liberty Safeguards (DoLS) with a scheme known as the Liberty Protection Safeguards.
Liberty Protection Safeguards (LPS) are designed to protect people aged 16 and over who lack the capacity to consent or make decisions about their own care or treatment. In these cases, the LPS legislation provides the legal framework for depriving someone of their liberty in order to receive care or treatment.
People who might be affected by the LPS legislation include those with autism, learning disabilities, dementia, acquired brain injury or mental health issues.
DoLS were an addition to the Mental Health Act (2005). It followed the case of an adult with autism who was admitted to hospital and treated without his consent. The adult was not detained under the Mental Health Act however the hospital refused to allow his family to discharge him. This meant that the hospital assumed complete control of his movement and ability to leave the hospital.
The European Court of Human Rights ruled that the patient had been detained in hospital unlawfully in a way that deprived him of his liberty under Article 5 of the Human Rights Act. The European Court of Human Rights ruled that if a patient or a resident in a Care Home or hospital is cared for in a way which requires them to be deprived of their liberty to provide care or treatment it must be done following due legal process. As a result, the Mental Capacity Act 2005 was amended on 1 April 2009 to introduce the Deprivation of Liberty Safeguards (DoLS), providing a lawful means of depriving someone of their liberty when it is judged to be in the patient’s best interest.
However, in 2014 the Supreme Court ruled that in addition to Article 5, deprivation of liberty must also consider Article 8 of the Human Rights Act and the right to a private life.
The 2014 ruling provided greater clarity in the form of an ‘acid test’ for health and care professionals who, to make a decision, need to determine:
- Is the person subject to continuous supervision and control? and
- Is the person free to leave?
With these new criteria it was felt that DoLS was no longer adequate to protect people’s human rights. So, whilst both the DoLS and the LPS have the same goals the latter has been extended to include young adults from 16 years old, to include additional settings, and the process streamlined to reduce the administrative burden.
There are some concerns that the trade-off for a more streamlined approach is the removal of some safeguarding checks and balances, whilst extending the scope is expected to significantly increase demand on services to consider requests for people to be deprived of their liberty.
The LPS is due to come into force on the 1st April 2022. However, before this can happen the government is required to conduct a 12-week consultation on a single Mental Capacity Act and LPS Code of Practice, and for the guidance to be formally signed off by Parliament and published. As a result, agencies are expecting the implementation date to be pushed back.
Regardless of the start date the proposal is for the current DoLS system to run in parallel to LPS for the first year after implementation to ease the transition of existing cases.
Summary of the Changes
The following provides a summary of the key changes proposed by the Liberty Protection Safeguards (LPS):
- LPS authorisation is based on three assessments: In addition to a capacity assessment LPS authorisation also requires a ‘medical assessment’ to determine that the person has a mental disorder, and that the arrangements are necessary to prevent harm and are proportionate to the likelihood and seriousness of that harm. The assessment process will be embedded into existing care planning processes however some agencies have voiced their concerns about the challenges of getting a formal mental health diagnosis for all cases.
- Extending the scheme to domestic settings: The LPS will apply to individuals residing in domestic settings who need to be deprived of their liberty. Domestic settings include Shared Lives, supported living and the persons own or family home. This change aims to ensures that all individuals who need to be deprived of their liberty will be protected under the Liberty Protection Safeguards without the need to go to court. It is expected that this additional demand will place significant pressure on Adult Social Care workforce and capacity.
- Responsible Bodies under the LPS: Under the LPS the local authorities, CCGs and NHS trusts will be ‘Responsible Bodies’. Where the arrangements are mainly taking place in an NHS hospital the Responsible Body will be the ‘hospital manager’, where they are being carried out through continuing healthcare (CHC) the Responsible Body will be the CCG and where they are being carried out in a care home, supported living or community setting the Responsible Body will be the local authority. These arrangements create a new role for CCGs and NHS trusts in carrying out assessments and authorising the deprivation of liberty arrangements and pose significant workforce development challenges to all three agencies both in terms of capacity and training.
- Extending the scheme to and 16 and 17-year-olds: Currently, when a 16 or 17-year-old needs to be deprived of their liberty, an application must be made to the Court of Protection. Under the LPS, Responsible Bodies (Hospital Trust, CCG or Local Authority) can authorise the arrangements without a Court order. This aims to minimise the potential distress and intrusion for young people and their families. This extension creates a new role for Children’s Social Services and poses significant cultural and training workforce development challenges and the need to adopt a new way of working with young adults that involves the assessment of mental capacity.
- Greater involvement for families: Any decision about a person’s capacity to make a decision will include an explicit duty to consult those caring for the person and with those interested in the person’s welfare. There will be options for a family member or someone else close to the person to represent and raise any concerns through the process as an “appropriate person”. This is likely to increase demand on the commissioning of Independent Mental Capacity Advocates and require clear multi-agency communication and information for families.
- Medical Emergency: The legislation also broadens the scope to treat people, and deprive them of their liberty, in a medical emergency without gaining prior authorisation.
- Targeted approach: Where it is reasonable to believe that a person would not wish to reside or receive care or treatment at the specified place, the case must be considered by an approved mental capacity professional (AMCP). This aims to provide an additional level of protection. The AMCP will review the information on which the Responsible Body relies, meet with the person if appropriate and complete the consultation with the person, anyone engaged interested in their welfare, a representative appointed by the Court of Protection or the independent mental capacity advocate (IMCA).
- Review: As with DoLS, the review period for the deprivation of Liberty can be up to a maximum of one year, however under LPS after the first year the review period can be subsequently extended to three years. This has raised some concerns that it will reduce levels of safeguarding scrutiny and conflict with the stated aim of a least restrictive response.
The following links provide more useful information and analysis:
Department of Health and Social Care: From DoLS to LPS: an important time for mental capacity - Social care (blog.gov.uk)
Social Care Institute for Excellence: Latest on the Liberty Protection Safeguards (LPS) | SCIE