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Liberty Protection Safeguards

The Liberty Protection Safeguards are a proposal from the Law Commission about how the changes to current legislation might look in relation to people who are deprived of their liberty. In 2014 two very significant events triggered the end of the Deprivation of Liberty Safeguards, although any changes (however much needed) are likely to be years away and will only occur if the Government accept the changes and a Bill passes through both Houses and becomes a new piece of legislation.

In 2014 the Lords Select Committee on the Mental Capacity Act branded the Deprivation of Liberty Safeguards as not fit for purpose and recommended an overhaul of the Act. Soon after, a collection of cases were heard by the Supreme Court which lowered the threshold for who might be considered to be deprived of their liberty. A huge increase of DoLS referrals ensued and both Local Authorities (acting as Supervisory Bodies) and the Court of Protection were inundated with applications. This left many people in care homes, nursing homes and hospitals potentially deprived of their liberty illegally and without the necessary safeguards in place.

It has been proposed that the Liberty Protection Safeguards take both of these factors into account and provide safeguards for vulnerable adults who need it without unnecessary assessment duplications from health and social care professionals. The proposed Liberty Protection Safeguards would apply in all settings whereas the current Deprivation of Liberty Safeguards (DoLS) regime only applies to registered care homes and hospitals. Anyone who lives outside of these settings such as their own home or supported living would need an order from the Court of Protection to be deprived of their liberty. Second, the Liberty Protection Safeguards would apply to anyone over the age of 16. This would bring it in line with other aspects of the Mental Capacity Act which apply to anyone over the age of 16. The current Deprivation of Liberty Safeguards only apply to people aged 18 or over. A statutory authority to deprive a person of their liberty temporarily would replace the current Urgent Authorisation and would only be permitted in truly urgent situations and sudden emergencies.

Perhaps one of the most welcome changes proposed will be when the process is undertaken. Currently, assessments under the Deprivation of Liberty Safeguards are often made and authorisation sought after the person has already moved into a care home and into circumstances that already amount to a deprivation of liberty. Under the Liberty Protection Safeguards, an authorisation to deprive someone of their liberty would be decided at the planning stage ensuring that a full analysis of all available options is undertaken before anything is finalised.

The current DoLS regime simply authorises a deprivation of liberty whilst the Liberty Protection Safeguards would authorise particular care arrangements regardless of where they were provided. This would potentially reduce the number of assessments required because a new assessment wouldn’t be required if someone living at home moved into a respite placement or was admitted into hospital providing the care arrangements were similar. The new safeguards also propose that there will be no need for a Supervisory Body. Currently, the Supervisory Body (which is a Local Authority) authorise all deprivation of liberty under the DoLS scheme. This would be replaced by those responsible for arranging the care authorising it. So, for instance, a person being discharged from hospital the Responsible Body will be the NHS Trust. Similarly, if someone is receiving Continuing Healthcare Funding the Responsible Body will be the Clinical Commissioning Group. And for others, the Responsible Body will be the Local Authority commissioning their care. The general rule would be that the responsible Body will be the authority responsible for meeting a person’s needs under the Care Act 2014. Finally, one other main difference between the 2 schemes will be around the role of the Best Interest Assessor. Under the Liberty Protection Safeguards a new role of Approved Mental Capacity Professional will be introduced. The Approved Mental Capacity Professional will provide a layer of scrutiny to the proposed arrangements in cases where the is a higher level of complexity such as where someone is objecting to the arrangements.

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