Legislation to replace the Deprivation of Liberty Safeguards (DoLs) received Royal Assent on 16 May 2019. The legislation provides for the repeal of DoLs to replace it with a new scheme called Liberty Protection Safeguards (LPS), to ensure individuals are only deprived of their liberty when it is in their best interests.

Following the Supreme Court decision in the case of Cheshire West (2014), the threshold for what constituted a Deprivation of Liberty was lowered. This led to a rise in DoLs applications in England causing longs delays and backlog in processing cases through the system. The need for reform to provide an appropriate legal process that protects the rights of those who are deprived of their liberty, became apparent. Law Commissioner, Nicholas Paines QC stated that “This new legislation…will go a long way towards addressing the flaws of the current system and better protect the most vulnerable in society.”

The Government sought to tackle the problems through the implementation of the LPS scheme which will provide a more streamlined alternative to DoLs. The LPS will introduce a process for authorising arrangements enabling care or treatment, which give rise to a deprivation of liberty, where the person lacks capacity to consent to the care or treatment.

The key changes include:

  • Applications can be made by people aged 16 and over;
  • LPS will apply to people in private and domestic settings;
  • Responsible bodies will replace supervisory bodies to authorise arrangements that give rise to a deprivation of liberty;
  • Introduction of a pre-authorisation review; and
  • Authorisations to be renewed for a period of up to 12 months on the first renewal, or up to 3 years on any subsequent renewal.

Applications made by people aged over 16

The LPS will be bringing the safeguards in line with the rest of the Mental Capacity Act by applying to those who are aged 16 and 17 years old. This will eliminate the need for a court application to authorise the deprivation of liberty of a 16 and 17 year old, who lacks the relevant capacity.

Responsible bodies replacing Supervisory bodies

Under the DoLs system, supervisory bodies are the agencies which can authorise a deprivation of liberty and this is limited to the Local Authority. The LPS will see the replacement of supervisory bodies with responsible bodies. As a policy approach, the Government intends to reduce the burden on Local Authorities through spreading responsibility to involve hospitals, the CCG and in some cases, care homes.

Applicable to people in private and domestic settings

DoLs state that they apply only to people in hospitals or care homes. However, following the Courts ruling in the case of Staffordshire County Council v SRK, an obligation was inferred on the local authority to investigate private settings, and where necessary, apply to the Court for an authorization. See a blog on that case here:

https://bit.ly/2MVrDsy

The LPS guidelines specifically state that they will apply to all care settings and will not be limited.

Pre-authorisation review

Prior to an authorisation, a review must be carried out by someone who is not involved in the day to day care or providing any treatment to the person. This review will be carried out by an approved mental capacity professional or another health care professional. There will be certain cases where the review will only be carried out by the AMCP, such as where a person is objecting to their care and residence.

Renewal of authorisations

The DoLs system gives no authority to renew a standard authorisation. Instead, the supervisory body must arrange for a new authorisation to be carried out immediately after the expiry of the current authorisation. The LPS will abolish this system allowing longer authorisations. The responsible body will be able to renew an authorisation for a 12-month period on the first renewal or up to 3 years on any subsequent renewal. To make the renewal, the responsible body will have to be satisfied that:

  • The authorisation conditions continue to be met; and
  • During the renewal period, it is unlikely that there will any significant change which may affect whether the conditions are met.

The Government has announced an expected implementation date of 1 October 2020. To allow plenty of time for the Local Authority, hospitals, care providers and the CCG to prepare for the change, the final draft of the Code of Practice is expected to be laid before Parliament in Spring 2020.

It is still unclear what the transitional arrangements will be, as on the date of implementation, there will be people who will have a DoLs authorisation in place or a court order, if they are in the community. The Government will work with service providers to develop a transitional arrangement, but they expect individuals to remain under their authorisation until it lapses.