There are many individuals, in various settings, who are deprived of their liberty by virtue of the type of care or treatment they receive. These include those unable to consent because they lack the mental capacity to do so. Such circumstances are governed by the Deprivation of Liberty Safeguards (DOLS), which were bought into force in April 2009 to ensure that professionals applied appropriate checks and balances when depriving a person of their freedom.
The evolution of DOLS
The state has an obligation to make sure that, when a person is deprived of their liberty by an agent of the state, such as social or health care professionals, there is lawful authority for such deprivation. This authority is required to comply with Article 5 (1) of the European Convention of Human Rights (ECHR), which was made part of English law via the Human Rights Act 1998. The ECHR places strict limits on the circumstances under which individuals can be deprived of their liberty.
Fast forward to 2014 and UK Supreme Court judgements in two cases, P v Cheshire West & Cheshire Council and P&Q v Surrey County Council, led to a huge increase in the number of people in England and Wales considered to be deprived of their liberty for the purposes of their care and treatment.
The court’s decision established an acid test to determine whether a person was being deprived of their liberty, comprising two questions:
- Is the person subject to continuous supervision and control?
- Is the person free to leave?
When the answer is ‘yes’ to question one and ‘no’ to question two, the person is considered to have been deprived of their liberty. Following the Supreme Court ruling, local authorities were inundated by retrospective and new applications, resulting in huge backlogs of applications.
A new standard: Liberty Protection Safeguards (LPS)
The Mental Capacity (Amendment) Act 2019 received Royal Ascent on 16 May 2019. The purpose of the act is to abolish DOLS and replace them with a completely new system, the Liberty Protection Safeguards (LPS).
Applying to England and Wales only, LPS is one system for all settings, including care homes, nursing homes, hospitals, day services, domiciliary care, supported living, and sheltered housing, and will apply to those aged 16 years and over. There is no statutory definition of what constitutes deprivation of liberty under the LPS, leaving the acid test set by the Supreme Court in place.
The role of the DOLS Supervising Body is abolished to be replaced by a Responsible Body, which will be different according to the setting. It could be the NHS Trust, the local authority or the clinical commissioning group.
The LPS comprises three assessments: the capacity assessment, the medical assessment, and a necessary and proportionate assessment. In certain circumstances, the Responsible Body may ask the care home manager to organise the assessment. But the act also introduces a new role of Approved Mental Capacity Professional to deal with more complex cases, as well as expanding the role of the Independent Mental Capacity Advisor (IMCA)
Where are we?
Implementation of the new system was originally planned for October 2020. The various regulations, new code of practice and training requirements were to be ready by late 2019, with final agreements ready for Spring 2020, leaving six months’ breathing space before implementation.
We are now awaiting a definitive schedule but, with the COVID 19 pandemic and lack of parliamentary time and sittings, it is hard to see how October 2020 can be attained.
A clue may have been given by Baroness Finlay of the National Mental Capacity Forum during a webinar on the 3 June. She stated that LPS would not be implemented as planned on 1 October 2020 and that health and social care professionals should not be spending time on planning. This seems sensible, given current circumstances; however, it is worth stating that, as of yet, no decision has officially been taken to delay LPS implementation.
Margaret Ross Sands
Business Support Director
Margaret has over 30 years of experience in Health & Social care having worked in various local authorities in England holding senior positions in Contracting, Commissioning, and Operationally for the LA’s own in house Care Service. She has a deep knowledge of Adult Social Care and is our main policy lead in terms of keeping up to date with the latest government legislation, case law and good practice guidance. On leaving the statutory sector Margaret… Read Margaret’s Full Bio
