Out with the Old in with the New in 2022? Liberty Protection Safeguards

Proposals to reform the law following a review of the Mental Capacity Act and the DoLS were published in July 2015. Over the course of next two years the Law Commission undertook a public consultation, published interim statements and initial conclusions. Then in March 2017 the Law Commission published a report setting out its recommendations together with a draft Bill. So were born the Liberty Protection Safeguards.

History

The DoLS were introduced to protect those without capacity whose liberty was being restricted. They provided a way, if it was necessary and in their best interests, for individuals to be detained or their movements restricted. In March 2014 a detailed report was published by a House of Lords Select Committee in which it was said that the DoLS were “not fit for purpose”. There had been for some time questions and concerns raised as to the safeguards in place which were not available in all settings, that the system was bureaucratic and overly complex. In addition, it placed too much of a burden on those expected to apply it.

At the same time (March 2014) the Supreme Court judgment in the case of P v Cheshire West (https://www.bailii.org/uk/cases/UKSC/2014/19.html) clarified the test and definition for deprivation of liberty for mentally incapable adults. The case concluded that a deprivation of liberty would arise where a person who is not able to consent to arrangements around their care and treatment were not free to leave their care setting, whether they had expressed a desire to do so or not. This judgment was referred to this as the ‘acid test’. The clarification in this judgment meant that far more people should have been under the protection of the DoLS procedure.

Liberty Protection Safeguards

The Mental Capacity (Amendment) Act became law in May 2019 the purpose being to replace the Deprivation of Liberty Safeguards (DoLS) with the Liberty Protection Safeguards (LPS). The LPS establishes a process for authorising care or treatment which give rise to a deprivation of liberty within the meaning of Article 5(1) of the European Convention on Human Rights. The LPS were due to come into effect on 1 April 2022 but the Government announced in December 2021 that this would not be possible due to the need for the Act to be accompanied by a single Mental Capacity Act and LPS Code of Practice and Regulations, both of which still needed to be laid before Parliament and subsequently published.

The Act was controversial in that it did not include some of the recommendations around best interests and support for decision making. The key features of the LPS include:

• A broader scope in a medical emergency to deprive a person of their liberty without gaining prior authority
• Application to all settings whereas the DoLS only applied to hospitals and care homes
• It will apply to 16 and 17 year olds
• Regular checks and enhanced rights to advocacy to protect those most in need
• Proportionality and necessity continue to be central to any deprivation of liberty and must be considered alongside human rights
• Initial renewal can be for one year, but subsequently for up to three years
• Simplification of the Best interest assessment
• The Clinical Commissioning Group and NHS have been included as responsible bodies
• The Court of Protection will continue to have jurisdiction to deal with any disputes or appeals

Summary

The Mental Capacity Act is designed to empower and protect individuals who lack the mental capacity to make decisions regarding their treatment and care. The LPS, which will form part of the empowering framework of the Mental Capacity Act, are intended to improve outcomes for people who are or who need to be deprived of their liberty by broadening the scope to treat people, and be simpler and easier to understand.

Resources – Bailii.org

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*