By Saoirse de Bont
Introduction
The Liberty Protection Safeguards (LPS) were introduced through the Mental Capacity (Amendment) Act 2019, which received royal assent on 16 May 2019.
The purpose of the LPS are to replace the existing Deprivation of Liberty Safeguards (DoLS) regime, partly due to the substantial increase in cases which fell under the auspices of the DoLS following the Supreme Court case of Cheshire West, and partly due to criticisms of the DoLS regime, including the fact that there were many settings such as supported living placements and family homes, where people were being deprived of their liberty but the DoLS did not apply.
Road to Assent
The Mental Capacity (Amendment) Bill’s journey to royal assent was not smooth, with, for example, the Law Society reporting on its website in September 2018 that they “do not believe that the proposed Bill has sufficient safeguards and is not fit for purpose in its current form. It requires serious re-consideration and extensive revision”.
The Bill did undergo some key amendments before it was passed.
These amendments included extending the LPS to apply to 16 and 17 year olds, replacing the previous term “unsound mind” with “mental disorder”, explicitly stating that the cared-for person must be consulted, and explicitly stating that the cared-for person’s wishes and feelings must be considered as part of the necessary and proportionate assessment.
Further amendments included requiring that assessments cannot be carried out by someone with a financial conflict of interest, requiring responsible bodies to decide if care home managers should arrange the assessments and statement or if the responsible body takes on these functions, and including a duty to appoint an Independent Mental Capacity Advocate (“IMCA”) if a person doesn’t have an ‘appropriate person’ representing them, unless it is in the person’s best interests not to have an IMCA.
During the course of the Bill’s journey between the House of Commons and the House of Lords, the House of Lords disagreed with the proposed definition of ‘deprivation of liberty’ within the Bill. As a result, the final Mental Capacity (Amendment) Act does not include a statutory definition of the term ‘deprivation of liberty’.
Summary of the New System
The new Liberty Protection Safeguards will apply to individuals aged 16 and over, and will apply in all settings where someone is being deprived of their liberty, including supported living placements and family homes.
Although there is no statutory definition of ‘deprivation of liberty’ guidance is to be provided in the forthcoming Code of Practice.
The responsible body, i.e. the public body with responsibility for authorising the deprivation of liberty, will be the local authority in most settings, including private hospitals.
The responsible body will be the hospital manager for arrangements in an NHS hospital or the local Clinical Commissioning Group (CCG) in cases where an individual in the community is in receipt of NHS continuing healthcare.
There are certain conditions that need to be satisfied before arrangements can be authorised, and these are as follows:
- That the individual lacks capacity to consent to the arrangements depriving them of their liberty
- That the individual has a mental disorder
- That the arrangements are necessary to prevent harm to the individual, and are proportionate in relation to the likelihood and seriousness of harm
A pre-authorisation review must be carried out by someone who is not involved in the day-to-day care of the individual, or provides treatment to the individual, to ensure that the above three conditions are met.
In addition, it cannot be conducted by a person who has a connection with a care home.
An individual, or “cared-for person”, who is deprived of their liberty has the right to challenge the authorisation via the Court of Protection, pursuant to the new s21ZA of the Mental Capacity Act, which appears designed to work in the same way as s21A challenges to the DoLS, and which the government has confirmed will attract non-means tested legal aid.
The authorisation can be renewed in the first instance for one year and thereafter for periods of up to three years.
However, if the cared-for person is over the age of 18, and the proposed arrangements resulting in the deprivation of liberty are in place wholly or partly in a care home, then the responsible body, i.e. the local authority, can decide whether the care home should take the lead in various aspects of the authorisation process, including consulting with relevant individuals, such as the cared-for person, providing a statement setting out the basis for the authorisation, and conducting reviews.
The new system does not include a role for Relevant Person’s Representatives, with cared-for persons instead being represented and supported either by an “appropriate person” or, in certain circumstances, an Independent Mental Capacity Advocate (“IMCA”).
An appropriate person cannot be engaged in providing care or treatment to the person in a professional role, and if the cared-for person has the capacity to consent, they must consent to the appointment of the appropriate person.
If the cared-for person lacks capacity to consent to the appropriate person’s appointment, then the responsible body must be satisfied that it would be in the cared-for person’s best interests to be represented and supported by that appropriate person.
In both cases, the appropriate person must agree to act.
If there is no appropriate person who can be appointed, then, if the cared-for person has capacity to consent to being represented by an IMCA, the person must make a request for one, following which the responsible body must take “all reasonable steps” to appoint an IMCA to represent and support them.
If the cared-for person lacks the capacity to consent, the responsible body must take all reasonable steps to appoint an IMCA to represent and support them, unless satisfied that this would not be in their best interests.
Concerns
- There remain concerns about how the LPS will be implemented. Some of these concerns include:
- That access to an IMCA is conditional on a best interests test, and that such appointment is not mandatory, rather that the responsible body must take “all reasonable steps” to appoint an IMCA
- How it is to be assessed whether an individual has capacity to consent to the appointment of an appropriate person or to request an IMCA
- The role of care home managers and the fact that under paragraph 23 of the Act, that care home managers can take on the role of consulting with the cared-for person
- That the Act allows for an individual to be deprived of their liberty for up to three years without review
- Concerns about potential conflicts between the LPS scheme and the existing rights of young people and their parents under the Children Act 1989.
As such, it appears the new safeguards will serve to dilute, as opposed to strengthen, some existing protections for people who are deprived of their liberty.
There has been much emphasis placed on the Code of Practice, which will not only provide the definition of the term ‘deprivation of liberty’ but it is hoped will provide important clarification in respect of the above concerns.
It is also likely that certain elements of the new system will undergo legal challenges in the first months and years of implementation, as professionals and lawyers work together to ensure that their clients are safeguarded and protected in the best ways possible.
What happens next?
The government is in the process of drafting regulations and a Code of Practice to accompany the new legislation, with input being provided by various stakeholders.
On 16 July 2020, the government announced that the LPS will come into force in April 2022, as opposed to the previously announced date of October 2020, although some provisions, covering new roles and training, will come into force ahead of that date.
It has confirmed that it will undertake a public consultation on the draft regulations and Code of Practice, which will run for 12 weeks, and that a period of approximately six months will be allowed following the publication of the final Code of Practice, to allow the sector to prepare for the implementation of the LPS.
Importantly, as the LPS is not being implemented for some time, public authorities and professionals working in the relevant fields need to ensure that they continue to comply with the existing DoLS regime and the Mental Capacity Act 2005.
This requirement was reinforced by Mr Justice Hayden in a letter to the Directors of Adult Social Services in May 2020, in which he stressed the importance of the statutory requirements, and the need to properly authorise any deprivation of liberty in accordance with existing law.
As Mr Justice Hayden wrote: “The deprivation of the liberty of any individual in a democratic society, holding fast to the rule of law, will always require appropriate authorisation. Nothing has changed. The Mental Capacity Act 2005, the Court of Protection Rules and the fundamental rights and freedoms which underpin them are indispensable safeguards to the frail and vulnerable.”
Obligations of Deputies
At present, in the case of an individual who is being deprived of his liberty without proper authorisation (either under the DoLS or by court order) deputies have an obligation to raise this issue with the relevant providers and the local authority (or responsible body) with statutory duties to safeguard the individual.
In the event that the responsible body fails to take the necessary steps to ensure the appropriate authorisation is put in place, the requirement is on the deputy to make an application to the Court of Protection to draw this to the attention of the court (ACC & ORS [2020] EWCOP 9).
There is no indication that this obligation will change with the introduction of the Liberty Protection Safeguards.
However, further information may come to light with the finalisation of the regulations and the Code of Practice. In the meantime, it is incumbent on any deputies to remain alert to situations in which any individual for whom they act is being unlawfully deprived of their liberty and to take appropriate steps to refer this to the responsible body, and, if necessary, make an application to court.
For further information please contact Lilly Drakoulakou of Irwin Mitchell on Lilly.Drakoulakou@IrwinMitchell.com.
Saoirse is a solicitor who specialises in Court of Protection and community care cases. She regularly acts on behalf of vulnerable adults and their families in Court of Protection matters, particularly in relation to disputes regarding capacity and best interests. She acts on behalf of the Official Solicitor, Independent Mental Capacity Advocates (IMCAs) and family members, as well as deputies. She also assists people to challenge decisions made by public bodies, including local authorities and the NHS. This includes challenging cuts to NHS services and the closure of local government services, and working with people who have received unlawful care assessments or inappropriate care packages.
