Liberty Protection Safeguards – the new ‘gilded cage’

03 May 2019

The plans to replace the Deprivation of Liberty Safeguards (DoLS) with the Liberty Protection Safeguards (LPS) is a step closer as the Mental Capacity (Amendment) Bill was approved last week and is awaiting Royal Assent. No date for implementation has been given but commentators indicate that this could be Spring 2020.

Just as with the DoLS, there is no statutory definition of deprivation of liberty. Under the LPS, deprivation of liberty 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 what kind of arrangements would give rise to a deprivation of liberty.

The LPS will authorise deprivations of liberty only (Article 5) and will not authorise interference 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.

  • There will be three authorisation conditions (which could be carried out by one person):

    1. The person lacks the capacity to consent tothe 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.

  • In cases involving care homes, the responsible body can decide if it will arrange the necessary assessments or whether the care home manager should do so.

  • 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, an Approved Mental Capacity Professional will be appointed to 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 tobe 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

The LPS will provide greater transparency and a regime centred on the individual and should provide a higher level of protection to those for individuals who are deprived of their liberty because they lack mental capacity.

There will need to be transitional arrangements for current DoLS authorisations and service providers will need to familiarise themselves with the LPS, the code of practice (once drafted) and the additional responsibilities.

Authored by partner Jane Lang and legal execuitive Aliyah Hussain

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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Jane Lang

Jane Lang

Partner,
Cardiff


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