Liberty Protection Safeguards: Authorisation of Arrangements

Under the current Deprivation of Liberty Safeguards (DoLS) scheme, Local Authorities acting as Supervisory Bodies can authorise a deprivation of liberty without every case going through the court process. When the Liberty Protection Safeguards are introduced in 2020, the scheme will provide a similar vehicle through which a deprivation of liberty can be authorised.

There are three conditions that must be met before a responsible body (no longer called a supervisory body), which is a local authority, hospital manager or clinical commissioning group, may authorise the arrangements that amount to a deprivation of liberty:

1. The person lacks the capacity to consent to the arrangements
2. The person has a mental disorder
3. The arrangements are necessary to prevent harm to the person and proportionate in relation to the likelihood and seriousness of harm to the person

The responsible body may authorise the arrangements if they are satisfied that:

1. Schedule AA1 of the Mental Capacity Act 2005 applies to the arrangements. Schedule AA1 is contained within the Mental Capacity (Amendment) Act 2019 (The Act) and details the Liberty Protection Safeguards.
2. The person has a mental disorder and lacks capacity to consent to the arrangements.
3. The responsible body has consulted (where practicable and appropriate) everyone listed in paragraph 23 of The Act. The primary purpose of which is to ascertain the person’s wishes and feelings.
4. The responsible body has instructed a independent mental capacity advocate (IMCA) where necessary.
5. A pre-authorisation review has been carried out. There are specific requirements for the pre-authorisation review and who can carry it out.
6. A draft authorisation record has been prepared.

This process provides the necessary scrutiny to ensure that people are only deprived of their liberty where necessary. Although the scope, roles and process differs from the current DoLS scheme, it has many similarities.

However, if the arrangements are in a care home, the process starts to take a very different direction from the current DoLS scheme. Under the Liberty Protection Safeguards,  the responsible body may decide, if they so wish, to ask the care home manager to provide a written statement to confirm that points 1-5 above have been met.

So, for people whose care doesn’t change a great deal from one authorisation to the next, we may see this option being used to ensure that people aren’t unlawfully deprived of their liberty whilst waiting for another authorisation because most of the preparatory work can be completed by the care home manager. If this option is exercised, it will still be the role of the responsible body to authorise the arrangements.

After they have authorised the arrangements, the responsible body must, without delay, send a copy of the authorisation record to certain people including the cared for person. In any case, this should be within 72 hours. If it doesn’t take place within this time frame, they must review and record why.

Authorisation Record

An authorisation record is a record relating to a cared-for person, specifying all arrangements authorised by the responsible body.  As part of the authorisation process, a draft authorisation record will have already been prepared and this will become the authorisation record.  The authorisation record may include any information, but must include the following:

• The time from which the authorisation has effect, and when it is to cease to have effect
• The programme for reviewing the authorisation
• How the requirements of Part 5 (appointment of an IMCA) are complied with
• Anything else this Schedule requires to be specified

The responsible body must revise the authorisation record if there is any change in any of the matters that required to be specified in it.