This article was originally published for Care Markets on 12 July 2023, and the full article can be found here.
In April 2023, the Department of Health and Social Care announced that the Liberty Protection Safeguards (LPS) will not now be introduced this side of a general election, which it is anticipated will be held in autumn 2024. The impact of this delay means that the LPS are up in the air altogether – it is not clear whether any incoming government would have the appetite to resurrect the reforms. Even if they do, the earliest possible implementation date would now seem to be 2026 or 2027, given the extensive work that would be needed to prepare.
The decision to delay has been criticised by many, including the Joint Committee on Human Rights and Welsh government. This has been acknowledged in the latest newsletter issued by the Department of Health and Social Care (DHSC) on 20 June 2023. It is enormously frustrating for organisations that have invested time and resources into preparing for LPS. On the other hand, there may be some who welcome the decision not to push these reforms through at this stage, particularly given the numerous other challenges and priorities that the health and social care system is currently facing.
The Liberty Protection Safeguards were designed to resolve many of the problems posed by the current Deprivation of Liberty Safeguards (DoLS) arrangements including:
- Dealing with those outside of the scope of DoLS – people deprived of their liberty in the community in settings other than registered care homes, or those under the age of 18.
- Streamlining the process in an effort to address the challenge of scarce resources.
Given that LPS will not be going ahead for the foreseeable future, the current legal framework surrounding the authorisation of a deprivation liberty under DoLS will continue for the foreseeable future. This means that, in England, local authorities will continue to be the ‘supervisory body’ for all cases in hospitals and care homes, and applications will need to be brought to the Court of Protection for cases outside the scheme – particularly those in the community placements other than registered care homes and 16 and 17 year olds.
Understandably, there was a lot of focus on the LPS part of the new draft Code of Practice. However, significant parts of the draft code were not about the LPS but about other parts of the Mental Capacity Act 2005 (MCA). We identified three key themes arising from the new draft code:
- The legal angle – it captured key case law over the last 15 years.
- The practical angle – it addressed developments in the ways of working and good practice since the MCA came into force in 2007 and was scattered with new case scenarios.
- Tackling the tricky concepts – it aimed to address the more challenging concepts which have emerged over the years including assessing capacity, fluctuating capacity and executive functioning as well as emergency medical treatment.
The DHSC has now committed to working with the MoJ to update the MCA code, to ensure that changes in case law and good practice since its publication in 2007 are incorporated, and to reflect the feedback stakeholders have provided both before and during consultation. The timescales and plans for this are yet to be announced but this assurance will be welcomed by all stakeholders.
Whilst there is some uncertainty about the future, what is clear is that the DoLS regime is with us for at least a few more years.
What do I need to know?
Deprivation of liberty occurs when a person is cared for in a way that amounts to continuous supervision and control, they are not free to leave and they lack the capacity to consent to those arrangements. If a deprivation of liberty is occurring, this needs to have legal authorisation, otherwise the person’s human rights are being breached, and they may be entitled to damages.
Currently, the only routes to obtain legal authorisation are:
- Parental consent for children under 16.
- Using the DoLS for individuals over 18 in care homes and hospitals.
- Under the Mental Health Act if that is relevant.
- By obtaining a court order in all other cases.
The LPS were intended to replace the DoLS scheme entirely, and would have applied to 16 and 17 year olds as well as community placements such as supported living. They are now not being introduced in the foreseeable future and may never come into force.
What is the most important takeaway?
The priority for all social care organisations in the aftermath of this announcement should be ensuring compliance with the Mental Capacity Act 2005 (MCA). Whether, applying DoLS or LPS, the most important thing about Deprivation of Liberty is getting the fundamentals of the MCA right. High profile cases leading to awards of damages have resulted from cases when the MCA was not applied correctly by the organisations concerned, for example;
- not assessing capacity properly, or at all;
- not completing MCA compliant best interests assessments and especially;
- not consulting with the right people when assessing best interests.
Now is a great opportunity to regroup, reflect and ensure that the foundations of the MCA are ready for whatever comes next.
Five things to focus on
As there is no longer an impending change to the law in this area organisations need to ensure that their current practices are up to date. There are five key areas:
Policies – Many organisations will have put Mental Capacity Act and Deprivation of Liberty policies on the backburner, expecting the law to change. Those policies should now be reviewed and updated to make sure that they reflect the latest case law, as well as broader changes in the health and social care landscape.
Training – Similarly, MCA and DoLS training may have been on hold with organisations reluctant to invest, anticipating a change in the law. It is crucial to ensure that staff are confident to apply the current law and that care is delivered in an MCA-compliant way.
Using the DoLS – Independent hospitals and care home providers will need to continue to work within the parameters of the current DoLS scheme, and seek advice in those situations which may fall outside the scope of the DoLS regime.
Deprivation of liberty in the community – Domiciliary care providers will need to be alert to the possibility of a deprivation of liberty occurring for someone in their own home or supported living, where the need for a COPDOL11 application may not yet have been identified. Providers should work closely with the commissioners of care to ensure that court applications are being made in appropriate cases. Care plans, in particular, are key documents for these applications and may need to be reviewed in light of the court scrutiny that will occur.
Children and young people – There is a lot for providers involved with care of children and young people to consider, including all settings such as schools and children’s homes, as well as domestic settings and independent hospitals. Care providers may be involved in deprivation of liberty of children placed in acute hospitals after the breakdown of community placements. Without the changes posed by LPS, those cases will continue to need to be brought to the court.
Hill Dickinson is the national leading expert on the Mental Capacity Act 2005 (MCA) and deprivation of liberty, with more lawyers independently ranked in directories as leading practitioners in this field than any other firm.
Our lawyers have been involved in the leading case law, including at Court of Appeal and in the Supreme Court, as well as being involved in the development of national policy, guidance and training. Please get in touch for any queries you may have.
For further information, please contact:
Joanna Crichton , Hill Dickinson
joanna.crichton@hilldickinson.com
