The DoLS were created to ensure that people who can't consent to their care arrangements are protected, should those arrangements deprive them of their liberty. This is a result of the Mental Capacity Act 2005.
The new LPS have the same goals but have been established to smooth out some of the issues experienced with the DoLS as a result of the Mental Capacity (Amendment) Act 2019.
Key features of the Liberty Protection Safeguards
There are several changes the LPS introduces, three of which are:
- Adding domestic settings
- Increasing the age range to include 16 and 17-year-olds
- Introduction of new responsible bodies.
One of the biggest aspects of LPS are that any deprivations of liberty have to be authorised in advance by a ‘responsible body’.
1. Adding in domestic settings
The new Safeguards will cover those living in domestic residential settings, from their own homes to supported living facilities.
This means, irrelevant of what environment somebody is living in, they can now be protected by the new legislation.
2. Increasing the age range to include 16 and 17-year-olds
The LPS will also apply to 16 and 17-year-olds, meaning deprivations of liberty can take place without the need of a court order. This will look to make the process more consistent and looks to reduce distress.
3. Introduction of new responsible bodies
There are now new responsible bodies that have the power to authorise a deprivation of liberty. The body will vary depending upon the care setting an individual is in. For example:
- In a hospital, it will be the hospital manager.
- For continuing healthcare outside of a hospital, this is the local Clinical Commissioning Group (CCG), or health board if you’re in Wales.
- In care homes, supported living schemes, people’s own homes etc., the responsible body will be the local authority, even for self-funders.
Where it’s not clear who has the lead, responsible bodies will be expected to work together to identify the correct organisation.
Under DoLS, the authorising body for supported living is currently the Court of Protection. This has often meant considerable delays in authorisations, which has meant that decisions cannot always be made in advance and so often end up being retrospective. (Department of Health and Social Care, 2020)
The change to local authorities should help to reduce delays.
When there’s a request for authorisation for a deprivation of liberty in a care home, DoLS legislation currently allows for care home managers (if the local authority agrees) to take lead. They look at the assessment of capacity and the judgement of necessity and proportionality, passing their findings on to the local authority in its capacity as the responsible body.
Although convenient, this approach has received criticism, as it can lead to insufficient independent scrutiny of the proposed care arrangements.
The government has confirmed that this mechanism will not be part of the new LPS when it comes into effect in April 2022. Again, the person accountable to the responsible body would need to undertake assessments. (Social Care Institute of Excellence, 2011)
The LPS process
Authorising a deprivation of liberty
For a responsible body to authorise a deprivation of liberty, it needs to be clear that:
- The person lacks the capacity to consent to the proposed care arrangements
- The person has a mental disorder
- The arrangements are necessary to prevent harm to the cared-for person, and are proportionate to the likelihood and seriousness of that harm.
The process itself can be very informal like a simple email, although official forms could also be used. A ‘no wrong door’ principle will apply, meaning whatever the approach, a request should not be refused due to a technicality in the application method.
The responsible body must consult with the person and others to understand the person’s wishes, feelings, and level of understanding about the arrangements. Therefore, an individual from the responsible body who’s not directly involved in the care and support of the person subject to the proposed care arrangements, must conclude if these meet the three criteria above.
It remains to be seen in practice how the responsible bodies will resource such decision making in such a way as to enable the timely processing of what could be high numbers of applications. (Social Care Institute of Excellence, 2011)
Where it’s evident or reasonably suspected that the person being cared for objects to the deprivation of their liberty, then a more thorough review of the case must be carried out by an Approved Mental Capacity Professional. The professional reviewing the case can only be referred by the responsible body. Again, how this will be resourced in practice remains to be seen at this time. (Department of Health and Social Care, 2020)
Similarly, once a deprivation request is authorised, there should be regular reviews by the responsible body, which also needs to ensure it upholds the person’s right to an Independent Mental Capacity Advocate (IMCA) or an ‘appropriate person’. The latter can be a family member or someone else close to the person who is able to raise concerns throughout the process and in response to any authorisation. (Social Care Institute of Excellence, 2011)
A deprivation under LPS can be for a maximum of 1 year initially. It can be renewed for an extra year upon review and then subsequently for up to 3 years. Again, as under DoLS, the Court of Protection will oversee any disputes or appeals.
The target date for implementation was originally 1 April 2022, but this has now been delayed by the Department of Health and Social Care until early 2023. There will be a 12-week consultation before this and once completed, a single Mental Capacity Act and LPS Code of Practice, with all of its regulations, will be presented to Parliament and then subsequently published. The government is hopeful that this lead-in for the new process will clarify some of the questions about how LPS will work in practice and the resources and training required to implement it. (Department of Health and Social Care, 2020)
What we do know is that it’s expected that the DoLS will run alongside LPS for a year after implementation to ease the transition of existing cases, although it will not be used for any new cases. (Department of Health and Social Care, 2020)
So, what next?
These changes are coming and we can expect the discussions around finding the right balance between protecting people and making the process manageable and achievable to continue for a while yet, both before and after implementation.
As care providers, we must focus on understanding the application of the new legislation to enable us to ensure that those people whose liberty is compromised receive the best possible support. (Social Care Institute of Excellence, 2011)
Department of Health and Social Care. (2020). Liberty Protection Safeguards factsheets. [online] Available at: https://www.gov.uk/government/publications/liberty-protection-safeguards-factsheets [Accessed 25 Jan. 2022].
Social Care Institute for Excellence. (2011). Deprivation of Liberty Safeguards (DoLS). [online] Available at: https://www.scie.org.uk/mca/dols [Accessed 25 Jan. 2022].
Legislation.gov.uk. (2005). Mental Capacity Act 2005. [online] Available at: https://www.legislation.gov.uk/ukpga/2005/9/contents [Accessed 25 Jan. 2022].