Written by Alex Beresford, Trainee Solicitor
It is out with the DoLs and in with the Liberty Protection Safeguards (LPS) as the Mental Capacity (Amendment) Act 2019 finally received Royal Assent on 16 May 2019.
For many years, Deprivation of Liberties Safeguards (DoLs) have been considered overly complex and not fit for purpose. This Act completely repeals the DoLs process contained in the Mental Capacity Act 2005 (MCA) and replaces it with a new, broader scheme called the LPS.
After much debate, the Act has not sought to define 'deprivation of liberty' beyond the wording of Article 5 (1) of the ECHR. The leading case law continues to be Cheshire West [2011] EWCA Civ 1257 and the decisions of the European Court of Human Rights, which gave a very broad scope to deprivation of liberty, and notably included many care home residents.
Liberty Protection Safeguards (LPS)
The DoLs process referred to the 'supervisory body' (the local authority) who could authorise arrangements situated only in hospitals and care homes. The new LPS system introduces a new, wider concept called the 'responsible body' who may deprive a person of liberty if, by doing so, it is 'enabling the care and treatment of persons who lack capacity'. This includes all institutional accommodation situations (as well as transport arrangements) and will now be:
- In an NHS hospital, the hospital manager;
- In an independent hospital, the responsible local authority;
- For arrangements under Continuing Health Care (i.e. NHS funded nursing care), the local CCG; and
- For any other arrangement (care homes, supported living, private hospitals etc.) the local authority.
The LPS scheme requires the following conditions to be met in order for a person to be deprived of their liberty:
- They are aged 16 (changed from 18) or over and lack capacity to consent to the arrangements;
- They have a mental disorder i.e. are of 'unsound mind'; and
- The arrangements are necessary to prevent harm to the person and proportionate to the likelihood and seriousness of that harm.
Whilst this may seem to fit into three clear conditions and the new process is welcomed by many, the process a responsible body must undertake to evidence the criteria is still very prescriptive. It includes thorough consultation to understand the person's wishes about the arrangements (normally with their family and carers), unless this is not practicable or appropriate. Additionally, the responsible body must both be satisfied that (where required) an appropriate person or independent mental capacity advocate (IMCA) has been appointed, and that a pre-authorisation review (by someone not involved with the direct care of that person) has been undertaken. Where it appears that the care arrangements are objected to by any involved party, a more comprehensive review must then be carried out by an Approved Mental Capacity Professional (AMCP).
Once granted, authorisation can be immediate or to begin up to 28 days in the future. As with DoLs, it can last up to one year initially, but then LPS allows this to extend to three years following a renewal. Regular review is required to ensure safeguards continue to be appropriate.
What happens next?
The Government is now working on a series of regulations and a code of practice, which will be subject to public consultation, setting out the detail of how the LPS will work.
Whilst the Act is likely to come in force in spring 2020 (and have a transition period for the existing backlog of cases) it is important for health and care providers to follow the next 12 months very closely. Providers of authorised arrangements need to understand the new roles and responsibilities in the LPS process, engage with any consultation and react to any new guidelines (the Act requires guidance to be reviewed within three years of the legislation coming into force and every five years after).
Care homes in particular need to engage early with the LPS as it gives greater responsibility for care home managers to lead on authorised arrangements (which are to be carried out in or partially in care homes for persons over 18) and report back to the responsible body. This could generate concern regarding independent scrutiny of such self-assessment. It is therefore crucial to be clear and adept in assessing any proposed arrangements. Proactive engagement and detailed records will assist with this.
Fieldfisher's lawyers are very experienced with assisting service providers to navigate health and care regulation. Please contact us if you could like to discuss how we can help further.