The Liberty Protection Safeguards are a provision within the Mental Capacity (Amendment) Bill which has finished its journey through Parliament and awaiting Royal Assent. The last stop was the House of Lords during the Ping Pong stage where the House agreed that there shouldn’t be a statutory definition of deprivation of Liberty within the Act itself. However, they did conclude that a definition would be useful and should be explained within the new Code of Practice. Below are some common questions that I have been asked and my best efforts at answering them. As you will appreciate, this is still an evolving process but it will give you a good idea of what the changes will probably look like.
When will the Liberty Protection Safeguards start?
Probably one of the most common questions asked is when the Liberty Protection Safeguards will become a ‘thing’. Spring / Summer 2020 is the time I’ve heard the most frequently. The Mental Capacity (Amendment) Bill is the Bill which will remove the Deprivation of Liberty Safeguards from the Mental Capacity Act and introduce the Liberty Protection Safeguards. It is nearing the end of its journey towards becoming law and the next step is for it to gain Royal Assent. Once that’s taken place, that’s it. However, with new legislation that requires other things to happen, there is often an implementation period. In this case; Approved Mental Capacity Professionals will need to be trained as will care home managers (more on those later). There is also the job of publishing a new Code of Practice to provide some of the finer details of how the LPS will work in practice. Some of the amendments (such as a definition of deprivation of liberty) that the Houses wanted in the Act were left out with the promise that they will appear in the Code of Practice.
Will Deprivation of Liberty cease to exist?
No. Deprivation of Liberty and the Deprivation of Liberty Safeguards are two different things. The Mental Capacity (Amendment) Bill will replace the Deprivation of Liberty Safeguards. A process that means not all cases of deprivation of liberty need to go to the Court of Protection to decide whether it is lawful. Deprivation of Liberty is addressed in Article 5 of the European Convention on Human Rights.
Will there still be a role for Best Interests Assessors?
A Best Interests Assessor is the professional (alongside specially trained doctors) who completed the assessments the Supervisory Bodies (Local Authorities) use to decide whether a deprivation of liberty should be authorised. Under the new scheme, the role of the Best Interests Assessor will cease to exist. There will be a new role, Approved Mental Capacity Professional (AMCP). Complex cases (if the person is objecting for instance) will be referred to the AMCP, other cases will not although will still be authorised by the Responsible Body.
Is the Supervisory Body still the Local Authority?
Currently, under the Deprivation of Liberty Safeguards the Supervisory Body is the local authority. This is who has responsibility for authorising a deprivation of liberty under the scheme. When the Liberty Protection Safeguards start, there will be others who also authorise deprivations of liberty and they will be called Responsible Bodies. If a person’s care is funded through Continuing Healthcare, the Clinical Commissioning Group will be the Responsible Body. If they are in an acute hospital, the hospital manager will be the responsible body and for all other cases it will be the local authority.
Another change for responsible bodies will be that they can authorise a deprivation of liberty for up to a year initially and then for up to 3 years after that.
Who will be covered by the LPS?
The LPS will essentially do the same job as the current DoLS system. They will ensure that anyone deprived of their liberty in certain circumstances receive the safeguards the law allows and this won’t change. What constitutes a deprivation of liberty won’t change either so the objective and subjective elements and imputability to the state will need to be met. The acid test set out by the Supreme Court in the case that has become known as the Cheshire West case will also still need to be met. However, the new scheme will apply to anyone over the age of 16 and will apply to people living in any circumstances. Currently, the deprivation of liberty safeguards only apply to people living in registered care / nursing homes and those in hospital. So the scope of who will fall within the remit of the scheme will be widened and those going to the Court of Protection will be less.
What about care home managers?
Initially, it was proposed that care home managers played a big part in assessing their residents to determine who should receive deprivation of liberty authorisations. This was met with widespread concern from many including care home managers. As well as the increased training and workload, there were concerns about the potential conflict of interest. This idea was scrapped as the Bill passed through parliament and now the responsible bodies will have a greater say in who completes pre-authorisation assessments which will be required for everyone who is deprived of their liberty.