Liberty Protection Safeguards – the new ‘gilded cage’

The Mental Capacity (Amendment) Act 2019 received Royal Assent on 16 May 2019 and the Deprivation of Liberty Safeguards (DoLS) will be replaced with the Liberty Protection Safeguards (LPS).  The DHSC has confirmed that the intention is for  the LPS system is to come into force on 1 October 2020.

Under the new LPS, just as with the DoLS, there is no statutory definition of deprivation of liberty and it is given the same meaning as it has under Article 5(1) of the European Convention on Human Rights (ECHR).  Guidance is to be given in the LPS code of practice about the type of arrangements that would give rise to a deprivation of liberty. Progress is being made and the final draft of the Code is expected to be prepared by Spring 2020.

The LPS will authorise deprivations of liberty only (Article 5) and will not authorise interference with or breaches of Article 8 ECHR (right to private and family life).

The acid test for what restrictions constitute a deprivation of liberty will continue to be whether a person is under ‘continuous supervision and control and not free to leave’, as per the Supreme Court ruling in P v Cheshire West [2014] UKSC 19.

What has changed?

  • The LPS apply to any setting (and will include supported living, private and domestic settings, unlike before) so authorities will no longer need to apply to the Court of Protection for individuals not in a care home or hospital.
  • The LPS will be extended to all those aged 16 or above (DoLS only applied to those aged 18 or over).
  • A responsible body will be able to authorise arrangements that give rise to a deprivation of liberty (in any setting or more than one setting):-
    1. Where the arrangements are in an NHS hospital this will be the “hospital manager” (the trust or health board).
    2. Where the arrangements are mainly in an independent hospital, the responsible body will be the “responsible local authority” in England and the equivalent health board in Wales.
    3. In cases of NHS continuing health care, the relevant clinical commissioning group or health board.
    4. In all other cases the responsible local authority.
  • Before a responsible body can authorise the arrangements, the following three conditions must be satisfied:-
    1. The person lacks the capacity to consent to the arrangements.
    2. The person has a mental disorder (as defined in section 1(2) of the Mental Health Act 1983.
    3. The arrangements are necessary to prevent harm to the cared for person and proportionate in relation to the likelihood and seriousness of harm to the cared for person.
  • Before arrangements can be authorised the responsible body must consult with defined individuals to try and ascertain the cared for person’s wishes or feelings about the arrangements.
  • A pre-authorisation review must be carried out by person who is not involved in the day-to-day care or providing treatment to the person.
  • If there are any challenges/objections then an Approved Mental Capacity Professional will be appointed provide an additional level of scrutiny to make the process more workable and proportionate.
  • Authorisation can have effect immediately or up to 28 days after.
  • Unlike DoLS, under the LPS authorisation can be renewed. Initial authorisation will be for up to 12 months, another 12 months thereafter and then for up to three years and measures for reviewing authorisations are to be maintained, provided that the authorisation conditions continue to be satisfied.
  • The responsible body must arrange a programme of regular (as well as statutory) reviews.

Appeals

The Court of Protection will continue to have jurisdiction to hear any challenges, including whether the LPS apply to the arrangements, whether the authorisation conditions are met and the duration of the authorisation. The court can also vary or terminate the authorisation or direct the responsible body to vary the authorisation.

Commentary

It is inevitable that there will be an increase in the number of applications in the care home setting to which the new LPS regime will apply and the impact will be significant. Care homes will need to implement transitional arrangements for current DoLS authorisations and familiarise themselves with the LPS, the code of practice (once drafted) and the additional responsibilities.

In circumstances where the arrangements are wholly or partly carried out in a care home, the responsible body will have to decide whether to arrange the necessary assessments or whether the care home manager should do so. The responsible body can delegate tasks in relation to renewal to a care home manager in relation to care home arrangements.

The responsible body/care home manager must ensure that the detention arrangements do not go beyond the scope of the authorisation. The Law Commission’s proposal to introduce a new tort of unlawful deprivation of liberty actionable against private care providers has not been taken forward but the government has taken the view that the tort of false imprisonment should provide an adequate remedy, by way of civil claim, against private care providers responsible for the deprivation. It is likely that this will be revisited as such cases arise.


Written by Jane Lang and Aliyah Hussain at BLM

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