Liberty Protection Safeguards
What are the Liberty Protection Safeguards?
The Liberty Protection Safeguards (LPS) are the legislative framework for authorising a deprivation of liberty (within the meaning of Article 5 of the European Convention of Human Rights). They will replace the current process which is called the Deprivation of Liberty Safeguards (DoLS) through the Mental Capacity (Amendment) Act 2019. 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. Although the Act itself has been given Royal assent, the practical details will be explained in the new Code of Practice which is currently being developed. It was due to be laid before Parliament in Spring 2020 but this has now been delayed and a new date has yet to be published.
When will the Liberty Protection Safeguards start?
One of the most common questions asked is when the Liberty Protection Safeguards will become a ‘thing’. In a letter dated 10th June 2019, Caroline Dinenage identified that the intention is that the Liberty Protection Safeguards will come into force on 1st October 2020. Although a formal statement is yet to be published, every indication is this will now be delayed due to COVID-19 until at least Spring 2021. As is often the case with larger pieces of legislation, there is an implementation period so although we have the Act itself, we don’t have all the finer details yet. In this case; Approved Mental Capacity Professionals (AMCP) will need to be trained as will care home managers (more on those later). There is also the task of publishing a new Code of Practice to provide some of the finer details. Some of the amendments requested by Parliament were left out of the Act 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) Act 2019 will replace the Deprivation of Liberty Safeguards. A process within the Mental Capacity Act 2005 that means not all cases of deprivation of liberty need to go to court for a judge to decide whether it is lawful. Deprivation of Liberty is addressed in Article 5 of the European Convention on Human Rights. When the Liberty Protection Safeguards come into force, it is intended that those people who are already subject to a standard authorisation under the Deprivation of Liberty Safeguards will continue to be subject to the standard authorisation until it expires.
Will there still be a role for Best Interests Assessors?
A Best Interests Assessor is a professional (alongside specially trained Psychiatrists) who complete the assessments the Supervisory Bodies 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 and there will be a new role, Approved Mental Capacity Professional (AMCP). Complex cases and where the person is objecting to the proposed or current care arrangements will be referred to the AMCP, other cases will not although will still be authorised by the Responsible Body following an assessment.
Is the Supervisory Body still the Local Authority?
Currently, under the Deprivation of Liberty Safeguards the Supervisory Body is the local authority; the organisation 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.
Who will be covered by the Liberty Protection Safeguards?
The LPS will have s similar function 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 will also still need to be met. As the Mental Capacity (Amendment) Bill passed through the houses of Parliament and Lords, unsuccessful attempts were made to specifically define a deprivation of liberty to help practitioners. However, it proved too difficult not least over fears that a new definition would change the meaning from the one in Article 5 ECHR. The new scheme will apply to anyone over the age of 16 because it isn’t lawful for parents of 16 and 17 year olds to consent to care arrangements that amount to a deprivation of liberty, and will apply to people living in any circumstances. Currently, the deprivation of liberty safeguards only apply to people living in registered care or nursing homes and those in hospital.
Why will we have the Liberty Protection Safeguards?
The Liberty Protection Safeguards started life as 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.
First, 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 duplication from health and social care professionals. As mentioned above, the 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 lawfully. 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 deprivation of liberty.
Care Home Managers
In order to authorise the arrangements, a responsible body must be satisfied that:
- 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.
- The person has a mental disorder and lacks capacity to consent to the arrangements.
- 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.
- The responsible body has instructed a independent mental capacity advocate (IMCA) where necessary.
- A pre-authorisation review has been carried out. There are specific requirements for the pre-authorisation review and who can carry it out.
- A draft authorisation record has been prepared.
If the arrangements are in a care home and the person is 18 or over, 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. This has been met with a great deal of concern from care home managers and social care professionals alike. The important factor here is that the responsible body can only ask the care home manager to complete points 1-5 above, there is always the option for care home managers to decline the request.