On 5 April 2023, the Government announced that it would be delaying the implementation of the Liberty Protection Safeguards (“LPS”) to replace the Deprivation of Liberty Safeguards (“DoLS”) “beyond the life of this Parliament”.  We answer some key questions regarding this announcement below.

Will the LPS be implemented?

Unfortunately, it remains unclear at this point as the decision on whether to progress with the implementation of the LPS will need to be made by the new Government after the next general election. This is likely to be in late 2024 (at the latest early 2025).

When is the earliest the LPS could be implemented?

If, following the next general election, the new Government makes the decision to implement the LPS, we would not expect the implementation date to be before 2027.

Realistically, the earliest date for the new Government making a decision on the implementation for the LPS is likely to be early 2025. However, there would then need to be sufficient time to allow for any draft Code of Practice and accompanying regulations to be finalised and time for organisations to prepare and build up / train their staff teams and develop processes. Also, the Government has confirmed that those civil servants working on the LPS have been re-assigned, so this team would need to be re-established before being able to progress that work. 

What does this mean for authorising a deprivation of liberty?

Despite being declared ‘not fit for purpose’ by the House of Lords’ Committee nearly a decade ago, the DoLS framework will remain in place for the foreseeable future. If a person aged 18 or over is being deprived of their liberty in a care home or a hospital, DoLS standard authorisation will need to be applied for via the Local Authority to make the person’s deprivation of liberty lawful. 

If a person falls outside the DoLS framework (i.e. they are deprived of their liberty in the community - not in a care home or a hospital; or they are aged 16 or 17) an application will need to be made to the Court of Protection to make the person’s deprivation of liberty lawful. In many cases, these applications are made via the Re X DoL streamline process.

Responsibility for ensuring that a person’s deprivation of liberty is properly authorised lies with the relevant responsible commissioner for their care arrangements. Where a person is living in the community funded by NHS Continuing Healthcare, this would be the responsible ICB. Where they are commissioned by the local authority, it would be the local authority. If a person is jointly funded by a local authority and an ICB (for example s.117 aftercare under the Mental Health Act 1983), the responsibility would be joint.

At Bevan Brittan, we have developed a bespoke, online DoL Streamline service which includes software to assist local authorities and ICBs with applications made under the streamline process. For more information on this service, please contact Hannah Taylor or Imogen Farmer.

What about the delays in obtaining DoLS standard authorisations or Court-approval of the Re X streamline applications?

The average length of time to complete a DoLS standard authorisation was approximately 6 months in 2021-22. In our experience, a Re X streamline application is with the Court for between 6-12 months before authorisation. It is likely that there will continue to be significant periods of time where people are being deprived of their liberty without authorisation.

Where a commissioner or provider has submitted a Re X streamline application to the Court of Protection, it can rely upon the protection afforded by Section 4B the Mental Capacity Act 2005 (“MCA”) (where the deprivation of liberty is necessary for life-sustaining treatment or to prevent a serious deterioration in the person’s condition whilst an application is made to the Court).

However, that same protection is not available whilst a DoLS standard authorisation application is pending with the local authority.

Where commissioners and providers are facing such delays in authorisation, it would be prudent for them to ensure that they are regularly assuring themselves (and reviewing) that:

  1. the person continues to lack capacity to make decisions about their care arrangements;
  2. the care arrangements remain in the person’s best interests (addressing all factors on the s.4 MCA checklist), are necessary, proportionate and the least restrictive.

The regular reviews should be documented clearly.

The changes that would have been made to Section 4B of the MCA by the Mental Capacity (Amendment) Act 2019 have not yet come into force. These changes would have allowed for the deprivation of a person’s liberty for life-sustaining treatment or to prevent a serious deterioration in a person’s condition if they lacked capacity not only whilst an application had been made to the Court for authorisation but alternatively where the responsible body had commenced the authorisation process under the LPS. It remains to be seen whether the Government will seek to bring forward Section 4B with amendments to refer to DoLS instead of the LPS.

What about the Draft Code of Practice for the MCA?

Significant time and resource has been expended in developing an updated draft Code of Practice for the MCA (the “Code”). The Code was put out to consultation last July and the Government received over 600 responses which it is still considering.

Although a large part of the draft Code relates to the LPS, there is useful updated guidance on other issues such as fluctuating capacity, executive functioning, relevant information for capacity assessments, health and welfare LPAs and the definition of a deprivation of liberty. It may be that the Government will now seek to split these issues out and move forward with an updated draft Code on the non-LPS issues.

As raised in our response to the Government’s consultation, we consider expanding guidance in the Code on the following would also be helpful:-

  • Using Section 17(3) and Section 18 of the Mental Health Act 1983 to authorise a deprivation of liberty;
  • Clarification on Mr Justice Hayden’s Guidance on Applications Relating to Medical Treatment (published January 2020) and when an application to the Court of Protection to authorise a deprivation of liberty arising from the provision of medical treatment may be necessary;
  • The apparent extension of the judicial decision in the case of Ferreira to the whole hospital environment rather than only applying to ICU; and
  • Ensure the guidance on “relevant information” for capacity assessments reflects recent developments in case law.

For further information about the draft MCA Code please see our webinar here.

What should the priority for organisations now be with regards to the DoLS / LPS?

It seems clear that the DoLS are here to stay for at least another 4 years.

Consequently, local authorities, health bodies and care providers will need to have clear and robust process for managing the DoLS process and applications for Court authorisations that fall outside of the DoLS framework. Staff need to be well-trained to identify a deprivation of liberty, understand what steps need to be taken to authorise this and be familiar with the limits of Section 4B.

We regularly provide training sessions on the MCA and DoLS and we also offer a DoL streamline application fixed-fee service. If you would like further information please contact Hannah Taylor or Ruth Atkinson-Wilks.

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