Law Commission Report: ‘Liberty Protection Safeguards’ are proposed to replace DoLS scheme

On 13^th March 2017, following the conclusion of a lengthy public consultation, the Law Commission published its long awaited final report and draft bill setting out recommendations for the reform and replacement  of Deprivation of Liberty Safeguards (DoLS). The proposed replacement scheme is called the Liberty Protection Safeguards (LPS).

The DoLS scheme has been heavily criticised for being an ‘administrative and bureaucratic nightmare’ which is ‘not fit for purpose.’ The Law Commission review was prompted by an exponential rise in DoLS applications triggered by the Supreme Court decision in Cheshire West which widened the definition of a deprivation of liberty.  This in turn has placed a considerable strain on overstretched and under-resourced local authorities responsible for processing the applications.

The Liberty Protection Safeguards – what is being proposed?

• LPS will apply to a broader range of care settings – whereas the DoLS scheme only applies to hospital and care home settings the replacement scheme will also include supported living arrangements and people’s homes. This will obviate the current requirement to obtain Court of Protection authorisation for deprivations of liberty arising outside of hospitals and care homes. This court process is both time consuming and expensive and consequently is underutilised, thus leaving persons unlawfully deprived of their liberty with no safeguards in place.
• Arrangements that can be authorised – rather than simply authorising the deprivation of liberty itself (which is what currently happens under DoLS), the LPS scheme will enable the authorisation of the ‘arrangements’ which give rise to a deprivation of liberty. In other words it is the care regime that is authorised including place of residence and means and manner of transport between particular places.
• LPS will apply to persons aged 16 and over – the current DoLS scheme only applies to those aged 18 and over (despite the majority of the MCA provisions applying to 16 and 17 year olds). This means that the deprivation of liberty of a 16 or 17 year old currently requires court authorisation unless Mental Health Act detention is deemed appropriate. Not only is this expensive and onerous for local authorities and NHS bodies who are required to make the applications, it also causes unnecessary distress to young people and their families. In practice, under the current system, far fewer applications are made than are required, thus leaving young people without the protection of DoL safeguards.
• LPS authorisations will be undertaken by the ‘Responsible Body’– the body responsible for arranging care and treatment (to the extent that this is practicable) will also be responsible for processing the LPS authorisations.  The ‘responsible body’ will replace the current ‘supervisory body’ and ‘managing authority’ under the DoLS scheme. In the case of care arrangements being carried out primarily in a hospital setting, the ‘responsible body’ will be the relevant NHS Trust. In the case of care arrangements being carried out primarily through the provision of NHS continuing healthcare, the ‘responsible body’ will be the relevant clinical commissioning group. In all other cases the responsible body will be the relevant local authority.
• LPS conditions for authorisation – there are a prescribed list of ‘conditions’ that must be met in order for the ‘responsible body’ to authorise arrangements which would give rise to a deprivation of liberty:-

1. the person lacks capacity to consent to the arrangements;
2. the person is of ‘unsound mind’;
3. the arrangements are necessary and proportionate;
4. the required consultation has been carried out;
5. an independent review has been carried out;
6. in certain cases, the approval of an Approved Mental Capacity Professional has been obtained;
7. the arrangements must not conflict with a valid decision of a donee of an LPA or a court appointed deputy.

• The LPS assessments – three assessments must be undertaken:-

1. a capacity assessment in accordance with MCA principles;
2. a medical assessment (whether the person is of unsound mind);
3. an assessment of whether the safeguards are ‘necessary and proportionate’ weighing up the likelihood of harm to the person or to others.

The responsible body will be able to rely on a previous LPS capacity or medical assessment providing it is reasonable to do so. The best interests requirement will be removed as the Law Commission feels that this adds nothing to the consideration of whether a deprivation of liberty is necessary and proportionate. These assessments will be undertaken by a minimum of two assessors who are independent of each other. Their assessments will then be reviewed by an independent reviewer (who can also be someone employed by the responsible body) who will decide whether the conditions have been met.

• Independent review – an independent review will be carried out in all cases in order to confirm that the conditions for an authorisation are met or, in certain cases to refer the matter to an Approved Mental Capacity Professional (AMCP).  Given that in many cases the three LPS assessments will be undertaken by members of the team responsible for the person’s care and treatment, this new role of ‘independent reviewer’ is intended to ensure that those involved in the person’s day-to-day care and treatment do not have the final say on whether that person should be deprived of their liberty. Consequently the independent reviewer must not have any direct involvement in the person’s care or treatment and neither must they be the person’s Approved Mental Capacity Professional (AMCP).
• The Approved Mental Capacity Professional – this new role builds on the existing role of the ‘best interests assessor’ under the DoLS scheme. LPS require a referral to be made to an AMCP if :

1. it is reasonable to believe that the person does not wish to reside or receive care or treatment at a particular place; or
2. where arrangements are regarded as necessary and proportionate either wholly or mainly by reference to the likelihood and seriousness of harm to others.

In all other cases there will be a power to refer to an AMCP but not an obligation. The role of the AMCP is to decide whether the arrangements should be approved. For that purpose they are required to meet with the person (if practicable) and can consult with key individuals in the person’s life. The AMCP’s written approval is required to enable the responsible body to authorise the arrangements.

• The authorisation – the authorisation can either take effect immediately or within the next 28 days. It can last for an initial period of up to 12 months and can then be renewed for a second period of up to 12 months and thereafter for periods of up to 3 years.
• Reviews – the responsible body must set out fixed dates or prescribed intervals for review of the authorisation and must keep it under review generally thus responding to any change in circumstances when they occur.
• Urgent authorisations – the current system of urgent DoLS authorisations will be abolished under the new scheme. Instead there will be statutory authority to deprive a person of their liberty temporarily in truly urgent situations and in sudden emergencies, but only to enable life-sustaining treatment or to prevent a serious deterioration in the person’s condition.
• The LPS safeguards:-

1. Advocacy – once an authorisation is in place there is a duty to appoint an advocate (IMCA) unless there is an ‘appropriate person’ available to represent and support persons deprived of their liberty. The appropriate person replaces the relevant person’s representative under the DoLS scheme.
2. Legal Challenge – the LPS provides a right of legal challenge to the Court of Protection but the Commission also recommends that the government consider whether a first-tier tribunal might be more effective in dealing with such challenges (with the court of Protection regarded as being too slow and costly and failing to guarantee effective participation of the person).

Liberty Protection safeguards – what happens next?

Following the publishing of the Law Commission’s report and draft bill the Department of Health are now required to formally respond, which is anticipated to take place within the next 12 months. Further modifications are likely to take place before the draft bill is put before Parliament and goes through the usual legislative process. So unfortunately, it is still going to be some time yet before a new system is in place, and, that is assuming that Parliament adopts the Law Commission’s recommendations in some form or another which of course is not guaranteed.

If you have any questions about this guidance or require any advice on the issues discussed in this update please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk.