The Government has recently published the consultation on the draft MCA code, including the liberty protection safeguards.

This briefing is the first of a series commenting on the proposed code.

As previous briefings have explained [insert links], The Liberty Protection Safeguards (LPS) will replace the existing Deprivation of Liberty Safeguards (DoLS). Article 5 of the European Convention of Human Rights (ECHR) provides that no one should be arbitrarily deprived of their liberty or security. Consequently, where proposed treatment measures amount to the derivation of a person’s liberty, and that person lacks the mental capacity to consent to the measures, a set of safeguards must be adhered to in order to comply with the ECHR.

What is a Deprivation of Liberty?

There are three key elements of a ‘deprivation of liberty’:

  1. The person is being confined in a restricted space for a non-negligible period of time (‘the objective element’);
  2. The person has not validly consented to that confinement, and
  3. The State is responsible for the confinement.

The Government has committed to following the acid test for a deprivation of liberty set out in the case of P v Cheshire West and Chester Council and P v Surrey which confirmed that in order to be deprived of liberty, a person must be:

  1. Under constant supervision and control,
  2. Not free to leave.

The new consultation document lists factors to consider when deciding whether someone is under ‘constant supervision and control’. These include whether at all times, the individual or body responsible for the person, knows where that person is and what they are doing. Other relevant factors include whether:

  1. they are granted free time alone;
  2. they can make autonomous choices regarding their activities;
  3. they are temporarily locked in their room;
  4. they are subject to checks at least every half an hour.

Triggering the LPS Process

Where there is a reasonable belief that the proposed arrangements may amount to a deprivation of liberty, and the patient lacks the mental capacity to consent to these, then an LPS referral to the Responsible Body will be required. It is important to note that the phrasing in the consultation document makes clear that the threshold for an LPS referral does not require that the arrangements certainly amount to a deprivation of liberty, but only that they may amount to one.

In many cases, once an LPS referral has been triggered, a new capacity assessment is needed. The draft Code does, however, provide some scope for the Responsible Body to rely upon a pre-existing assessment.

Anyone can inform the Responsible Body of the possibility of a deprivation of liberty. For example care home staff, care workers or even family members may make the report if they believe the proposed, or even existing arrangements amount to a deprivation of liberty.

Authorising the Deprivation of Liberty by the relevant Responsible Body

Before the arrangements can be authorised, assessments of the person’s mental capacity must take place, to assess whether they have capacity to consent to the measures.

Three pre-authorisation assessments are required:

  1. An assessment and determination of the person’s capacity to consent;
  2. An assessment and determination of the person’s mental disorder, and
  3. An assessment of whether the proposed measures are necessary to:
  4. Prevent harm to the person, and
  5. Proportionate in relation to the likelihood and seriousness of that harm.

The first and third of these assessments may be carried out by any of the following: a medical professional, nurse, occupational therapist, social worker, psychologist or speech and language therapist. The second assessment may only be undertaken by a registered medical practitioner or psychologist.

It will only be possible for the same person to carry out the pre-authorisation reviews and grant the authorisation, if a sufficient degree of separation between the roles can be shown.

If the criteria for deprivation of liberty have been met, then the Responsible Body may authorise the arrangements.

Special Arrangements for Care Homes

Originally the draft LPS document made provision for care home managers to carry out some of the pre-authorisation work, including commissioning the assessments for a resident. The plan was then for the Responsible Body to review the relevant documentation and consider whether to authorise the deprivation of liberty.

This was controversial, and following concerns that were expressed over potential conflicts of interest, it was dropped from the draft Code. The role of the care home manager is however apparently being kept under review and the consultation questionnaire explicitly asks for feedback on this point at question 12.

Reviewing the Measures

The draft Code makes clear that once authorised, reviews are necessary to consider whether the current arrangements are still necessary and proportionate. Consequently, the Responsible Body should set out a formal schedule of reviews in an authorisation record. The reviews should consider:

  1. how restrictive the measures are;
  2. the conditions on the authorisation;
  3. the person’s wishes and feelings;
  4. the duration of the measures and
  5. the potential for any changes to the person’s condition.

Anyone may contact the Responsible Body and request a review. The information brought forward should then be considered, to determine whether the request is reasonable. A reasonable request must trigger a review.

Renewals

The maximum initial period of authorisation is 12 months, at which point a decision on renewal of the measures must be made. The first renewal must only be for a maximum of 12 months, and thereafter the measures can be renewed for a period of up to 36 months at a time.

Overlap with DoLS

Once the consultation has ended, and the LPS are implemented, there will inevitably be a period where both systems overlap. Regulation 7 indicates that where a DoLS referral has been made, but has not been processed by the time the LPS come into force, it will not be necessary to submit a new LPS application – instead the DoLs application will be treated as if it is an LPS application.

When will the LPS be implemented?

In short, we don’t know yet. The consultation is due to close by the 7th July 2022. The Government will then take until ‘the winter’ of 2022 to consider the responses to the 25 specific questions outlined in the consultation document.

If you would like to review the questions posed in the consultation document, these can be accessed here.