08/05/2019

Over the last year, Parliament has been considering The Mental Capacity (Amendment) Bill which seeks to replace the current DoLS scheme with a new framework called the Liberty Protection Safeguards (“LPS”).

The Bill was finally agreed by Parliament on 24 April 2019 and is due to receive Royal Assent shortly. It is expected that the new framework will come into force in Spring 2020.

What will change?

  • Responsible Body: The role of the supervisory body does not exist under the LPS. Instead, the relevant responsible body will be charged with authorising arrangements. The responsible body will depend on where the cared-for person (“CFP”) is residing. If the CFP is residing in an NHS hospital, responsibility will fall to the hospital manager; if the CFP is in receipt of continuing healthcare, this will be the relevant Clinical Commissioning Group; in all other cases, this will be the Local Authority.
  • Authorising Arrangements: The responsible body can authorise arrangements that amount to a deprivation of liberty if it is satisfied of three conditions; (i) the CFP lacks capacity; (ii) the CFP has a mental disorder; and (iii) the arrangements are necessary and proportionate. Assessments supporting these three conditions would be required (although for (i) and (ii) the responsible body can rely on an earlier assessment if it is reasonable to do so). There is no requirement to consider best interests.
  • Consultation: The responsible body must consult with the CFP and a range of other persons to try to ascertain the CFP’s wishes and feelings in relation to the arrangements.
  • Pre-Authorisation Review: Someone not involved in the CFP’s day-to- day care and treatment must carry out a pre-authorisation review to determine whether the three authorisation conditions are met. If the CFP is objecting to the arrangements, or if the CFP is receiving care and treatment predominantly in an independent hospital, this person must be an Approved Mental Capacity Professional.
  • Wider Scope: Arrangements in any setting, including domestic settings, can be authorised under the LPS (the LPS is not restricted to care homes and hospitals as is the case with DOLS).
  • Increased Flexibility: An LPS authorisation can cover more than one environment and travel with the CFP if they are moving between different settings (although this must be anticipated in advance).
  • 16/17 year olds: The LPS will apply to 16 and 17 year olds
  • Role of Care Homes: If the CFP is residing in a care home, the responsible body can delegate the assessment and consultation process to the care home manager if appropriate.
  • Renewable and Longer-Lasting: An authorisation under the LPS can be renewed; in the first instance for one year and thereafter for periods up to 3 years.
  • Safeguards: The CFP will need to be informed by the responsible body within 72 hours that their arrangements have been authorised and provided with a copy of the authorisation record. The CFP will be supported by an appropriate person or an IMCA (in the absence of an appropriate person) for the duration of their authorisation. The authorisation record must include regular reviews, which can also be triggered upon reasonable request.

What has not changed?

  • Definition: The Bill does not include a definition of deprivation of liberty. Instead, the Government has promised that the LPS Code of Practice will contain detailed guidance on what does and does not amount to a deprivation of liberty
  • Mental Health Act Interface: Patients who are detained under the Mental Health Act 1983 or are objecting to being in hospital for mental health treatment are not eligible for an authorisation under the LPS (although under the LPS it may now be possible to put in place a parallel LPS authorisation for someone detained under the MHA 83 where the authorisation relates only to arrangements regarding physical health care and treatment).
  • Court Challenge: The CFP will be able to challenge the authorisation before the Court of Protection.

Transition

It is anticipated that for the first year after coming into force, the DOLS scheme and LPS framework will work in parallel. In practice, this is likely to mean any DOLS authorisations will remain in place until they expire. At the point of expiry, it would be expected that the LPS framework is used for further authorisation. However it currently remains unclear as to how backlog cases (where the application has been made to the supervisory body but not yet approved) will be treated.  

What do we know about the Code of Practice?

The Government has confirmed that the Code of Practice will have statutory status. It has also confirmed that work on the Code has commenced and we expect that a first draft will be put to consultation in the Autumn of this year. The Code of Practice will be vital in fleshing out the details of how the LPS will work in practice.

 

Come to our Annual Court of Protection and Mental Health Seminar in June when we will be discussing this and other issues in more depth.