The Deprivation of Liberty Safeguards (DoLS) ensure that people, who are unable to consent to their care arrangements in a care home or hospital, are protected if these arrangements amount to a deprivation of their liberty. Currently, DoLS only applies to those aged 18 and over, but this system is due to change in April 2022.
Currently, when depriving a person of their liberty, an application must be made to the local authority for authorisation. A series of assessments must be carried out with a standard authorisation granted, permitting the person to be deprived of their liberty. In England, the ‘supervisory body’ is always the local authority receiving applications from the ‘managing authority’ – the care home or hospital.
Throughout the assessment, a best interests assessor will establish whether depriving a person of their liberty is a proportionate response to the likelihood of potential harm if they were free to leave and were without the assistance and supervision the managing authority provides. Some examples of potential restrictions on a person’s liberty may be that they are subject to locked doors or a keypad entry system, regular observation or set times/limited choice of activities.
The Mental Capacity (Amendment) Act 2019 introduced the Liberty Protection Safeguards (LPS). This was following reported delays in authorising DoLS due to local authorities being overwhelmed with the volume of applications, with COVID-19 being a definite contributor to this also. The proportion of applications completed within the statutory time frame of 21 days was just 24% in 2020-2021, as was also the case in the year prior.
The LPS will replace the DoLS system with its scope going beyond, and applying to those deprived of their liberty in domestic settings such as their own homes or supported living accommodation. It will also extend to 16 and 17-year-olds who, under the current system, can only be deprived of their liberty following authorisation by the Court of Protection. As DoLS only applies in care homes and hospitals, the new system aims to provide better protection for those deprived of their liberty in similar ways, just in a different setting.
Three assessments will form the basis of the authorisation under the LPS: a capacity assessment, medical assessment and a necessary and proportionate assessment. Unlike DoLS, this will be embedded into existing care planning and will make it much easier to use valid existing assessments as opposed to conducting new ones.
Local authorities and NHS bodies will be the ‘responsible bodies’ who will organise assessments and ensure there is sufficient evidence to justify the deprivation of liberty. It also aims to encourage the involvement of family members who will be given the opportunity to represent and support the individual as an ‘appropriate person’. As soon as a referral is made to the responsible body, they must then take steps to appoint an ‘Independent Mental Capacity Advocate’ (IMCA).
Under DoLS, a person can object to their deprivation of liberty which will then be reviewed by the Court of Protection. With the new system, if it is believed that the person would not wish to be cared for under the arrangements, the case must then be considered by an ‘Approved Mental Capacity Professional’. The AMCP can also consider referrals from the responsible body relieving some of the pressure local authorities are currently under.
The Court of Protection will still play a part in assessing whether measures are within someone’s best interests. Applications can be made if the person or anyone else wishes to challenge the arrangements authorised by the responsible body.
The proposal is for the LPS to come into force in April 2022 having been pushed back from 1 October 2021, however this date also appears to be somewhat ambitious. A consultation period was due to take place this year to allow for interested parties to bring valuable information to light, and scrutinise any shortfalls within the proposals which is yet to occur. Once the final LPS Code of Practice has been published, we then encounter a period of which preparations begin for full implementation.
Although a big change, it seems as though the introduction of the LPS may assist to make the process of depriving someone of their liberty somewhat smoother. The ultimate goal of safeguarding and protection remains the same, but hopefully with a view to ironing out the shortfalls of DoLS.
Anna Johnson, Paralegal
Posted on Monday, 6th December 2021