The Department of Health and Social Care (DHSC) announced yesterday that the implementation of the Liberty Protection Safeguards (LPS) will not go ahead this side of a general election (anticipated to be in Autumn 2024). The government says that this will enable it to focus for now on the critical priorities set out in its announcement about adult social care yesterday.
The legislation outlining the LPS – the long-awaited replacement to the Deprivation of Liberty Safeguards (DoLS) – was passed in May 2019 and was originally due to be implemented in October 2020, though the detail wasn’t published until a draft Code of Practice, out for consultation between March and July 2022. Since then, we have been waiting for an implementation date and a final version of the Code of Practice, since elements of it had been very controversial, not least the definition of deprivation of liberty itself.
But now it is clear that the LPS will not be implemented before the next general election, the reforms are in the hands of any incoming government in late 2024.
Even if the LPS is one of the new government’s priorities in late 2024, which seems very far from certain, the timescale to revive the policy, deal with the outstanding controversies, and set up afresh the road map to implementation would surely take us well into 2026 or 2027. By then, of course, other related policy issues, such as any reform of the Mental Health Act, may mean a change in approach.
As such, to the enormous frustration of those who have worked for nearly a decade on the LPS policy and preparation for its implementation, it seems far more likely now that these reforms are effectively dead in the water.
And of course, this leaves us with all the problems with the current system that LPS was supposed to address, in particular:
- Dealing with those outside the scope of DoLS – people deprived of their liberty in the community or under the age of 18.
- Even where DoLS applies – over the age of 18 and only in care homes and hospitals – the gulf between the demand on the system and its resources, leaving a huge backlog and a delay in authorisations.
- Hospital cases, in particular, are not typically prioritised by local authorities, and there is also real uncertainty in how to apply the law on deprivation of liberty in a medical treatment context.
Though the government statement says that it plans to publish “a summary of responses to the consultation in due course, which will set out further information about the feedback we received at consultation”, there remains uncertainty:
- Whether the draft Code of Practice which was going to combine an update to the Mental Capacity Act code (from 2007) and introduction of the LPS, will now go ahead in part or not at all. It will surely take some time to unravel the MCA and LPS elements.
- Will we still see, in due course, the parts of the LPS Code of Practice that might be relevant even without the reforms? For example, will the very controversial Chapter 12 definition of DoL (which the DHSC are at pains to say was not intended to change the law, but to explain the law as it already is) be brought in as part of an updated DoLS Code of Practice? Again, though, developing that from the remnants of the LPS draft code will be quite a task.
- Will the amendment to the Mental Capacity Act itself – extending the circumstances in which s4B can be used in emergency situations – be implemented without LPS?
No doubt some of this will become clearer over the next few weeks and months.
And – despite all the problems of the current system that LPS was meant to tackle – there may be some who welcome the decision not to push these reforms through at this stage, given the many other challenges and priorities for the health and social care system just now. NHS trusts and ICBs, in particular, may be relieved to be spared the additional obligations that LPS would have brought.
In the meantime, though, where health or care provision in the best interests of someone who cannot decide about it for themselves may amount to a deprivation of their liberty, there must still be a due legal process to meet the person’s Article 5 ECHR rights.
Leaving aside the use of the Mental Health Act, where appropriate, that means using the tools that we have: DoLS or the Court of Protection/High Court. As always, though, first and foremost we would encourage organisations to focus towards enhancing their existing policies and practices relating to the MCA, as well as in providing additional support to their workforce in maximising compliance with this framework.
Misunderstanding or misapplication of the MCA is at the root of most of the problems about deprivation of liberty; getting the MCA fundamentally right was the cornerstone of preparation for LPS, and it remains essential for good practice without those reforms.
For further information, please contact:
Ben Troke, Hill Dickinson
ben.troke@hilldickinson.com
