19th Apr 2022

Liberty Protection Safeguards implementation delayed…

Article 5 of the European Convention on Human Rights confirms that every person has the right to liberty. However, in certain circumstances it may be necessary to deprive a person who lacks capacity of their liberty, for example, to ensure they receive essential care or treatment.

The Deprivation of Liberty Safeguards (DoLS) are a set of procedures which protect people who are or need to be deprived of their liberty to allow them to receive essential care or treatment in a Care Home or Hospital setting in circumstances where they lack the necessary mental capacity to consent to this restriction of their freedom.

The Mental Capacity (Amendment) Act 2019 introduced Liberty Protection Safeguards which, when implemented, will replace the existing DoLS. The new system was due to come into effect in April 2022, but its implementation has been delayed. The Act will be supplemented by a new Code of Practice and consultation on this is currently underway (Link to Code of Practice Article): https://www.berwin.co.uk/blog/...

Why is the DoLs system being replaced?

In March 2014, a report published by the House of Lords Select Committee concluded that the DoLS were not fit for purpose and recommended their replacement. Criticisms of the DoLS system included the complexity and bureaucracy of the system. The expansion of the definition of deprivation of liberty (as set out in the case of P v Cheshire West & Chester Council & another; (2) P & Q v Surrey County Council) also meant that far more people fell within the remit of DoLS, placing additional pressure on already overstretched Local Authorities and practitioners.

The Liberty Protection Safeguards (LPS) are therefore being introduced in an attempt to improve efficiency and to increase the emphasis on the rights and wishes of the people who are being deprived of their liberty and who do not have the capacity to consent.

Key changes

Some of the main changes to the existing system will include:

  • Widening the scope of the framework to people aged 16 and above.
  • One scheme for all care settings which covers, for example, care homes, hospitals, and people's own homes in an attempt to remove costly applications to the Court of Protection. The organisation responsible for authorising the deprivation of liberty will depend on the setting, for example, this may be the Local Authority or local NHS Trust.
  • The LPS will require the responsible body to obtain three assessments which will form the basis of a deprivation of liberty authorisation; a capacity assessment to determine whether a person has the relevant mental capacity to consent to the arrangements, a medical assessment to confirm whether the person has a mental disorder, and an assessment to consider whether the arrangements are necessary to prevent harm and are proportionate in relation to the likelihood and seriousness of harm to the person.
  • There will be an explicit duty to consult carers, and those interested in the person’s welfare can represent them as an ‘appropriate person’.
  • The introduction of Approved Mental Capacity Professional who will be involved in the most complex cases.

The new implementation date is yet to be announced but is unlikely to be in the near future. Until this time, the DoLS regime will remain in place.

If you require any further information on deprivation of liberty issues, please contact our Life team on 01423 543102.

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