Five things you need to know about Liberty Protection Safeguards

Following the first parliamentary debate on the Mental Capacity (Amendment) Bill, we list the key features of the LPS and how it differs from DoLS

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Earlier this month (16 July), Parliament held its first debate on the Mental Capacity (Amendment) Bill, in the House of Lords. During the session, peers discussed the government’s proposed Liberty Protection Safeguards (LPS) model, which will replace the current Deprivation of Liberty Safeguards system (DoLS) after the bill becomes law.

The LPS is based on, but does not fully replicate, proposals made by the Law Commission following its review of deprivation of liberty law in 2017. It is designed to provide a much less bureaucratic system than DoLS for authorising health and social care arrangements that involve a deprivation of liberty to which a person cannot consent.

However, peers highlighted a number of potential problems with LPS, which will next be debated on 5 September, when House of Lords will start scrutinising the bill in detail at its committee stage.

Following the first parliamentary debate, Community Care has worked with Edge Training and Consultancy to produce a survey that allows the social care sector and interested members of the public to voice their opinion about the new safeguarding system.

The results will be reported on Community Care and sent to every MP in England and Wales before the second reading on 5 September.

Take the survey here:

Here are five key points you should know about LPS.

No statutory definition… but the government is considering one 

Last month, before the bill’s publication, Parliament’s influential joint committee on human rights said the government should legislate for a statutory definition of what constitutes a deprivation of liberty. This would limit the scope of deprivation of liberty compared with the Supreme Court’s ‘acid test’, set out in the 2014 Cheshire West judgment, which led to a substantial rise in the number of people whose restrictive care arrangements need legal authorisation.

Besides reducing caseloads, the committee felt such a statutory definition would reduce the level of intrusion on families in relation to cases of people requiring restrictive care arrangements in their own home – a setting which would be covered by the LPS, unlike DoLS.

The committee stated a definition would help to “clarify the application of the Supreme Court’s acid test” and “bring clarity for families and frontline professionals”, adding it would be “unworkable in the domestic sphere” without one.

However, in its 2017 report, the Law Commission  stated that a statutory definition that was narrower than the acid test would be “misguided”. This was because the Supreme Court was based on article 5 (the right to liberty and security) of the European Convention of Human Rights and the case law of the European Court of Human Rights, by which the UK courts are bound. This would mean the Court of Protection would need to authorise deprivations of liberty of people who fell outside such a statutory definition but within article 5.

In the end, the government declined to include a definition in the bill.  However, after peers raised the issue at the second reading of the bill, junior health minister Lord O’Shaughnessy said the government was “listening particularly to the recommendations of the joint committee” on this issue and considering options including having a definition on the face of the bill or in a statutory code of practice.

“Unsound mind”

Under DoLS, a deprivation of liberty authorisation can only be applied to people who are suffering from a mental disorder within the meaning of the Mental Health Act, though, unlike the MHA, DoLS encompasses all people with a learning disability

This was designed to replicate the provisions of article 5, which provides for the deprivation of liberty of people of ‘unsound mind’. However, the Law Commission proposed using the ‘unsound mind’ criterion directly and the government has followed this course in the bill.

The commission’s argument was that there were people of ‘unsound mind’ who are excluded from the definition of mental disorder in DoLS. Using the term would also help the law in England and Wales to adapt to changes in case law from the European Court of Human Rights, a point made by O’Shaughnessy at the second reading debate.

The commission acknowledged that the term is outdated and not in keeping with modern attitudes to people with mental health problems, an argument raised by peers at the second reading.  As with the statutory definition, O’Shaughnessy said the government would consider their concerns but made no further commitment than that.

No best interests assessment

Under DoLS, when an application has been made to deprive a  person of their liberty in a care home or hospital, the council or health board overseeing the process appoints a best interests assessor (BIA) to determine whether the person is, or will be deprived of their liberty, and, if so, whether this is in the person’s best interests, necessary to prevent harm and proportionate to the likelihood and seriousness of that harm. This is the best interests assessment.

In line with the Law Commission’s blueprint, the bill would abolish the best interests assessment and put in its place an assessment of whether the arrangements are “necessary and proportionate”. This means that less intrusive measures have been found to be insufficient for safeguarding the person or possibly other people.”

The commission said the necessary and proportionate test was in line with case law from the European Court of Human Rights. It also concluded that the current best interests assessment added nothing to the necessary and proportionate test as there was often no realistic alternative to the care placement being considered.

Also, having to meet a best interests test causes complications in cases where the need to deprive a person of their liberty was connected to the risk of harm to other people, said the commission.

However, concerns were raised in the second reading debate about the removal of the best interests assessment, with Labour’s Lord Touhig warning that the “new criteria risk losing sight of what is best for the individual and what the individual wants”.

In response, Lord O’Shaughnessy said there would be “no watering down of the interests of the individual concerned through this process”.

Increased role for care homes

The bill seeks to lighten the burden on local authorities of the DoLS system in a number of ways. Firstly, in England, local authorities will no longer be the body responsible for authorising deprivations of liberty in health settings; this role will pass to hospitals, in the case of hospital arrangements, and to clinical commissioning groups in relation to continuing healthcare arrangements.

Secondly, where the arrangements leading to the deprivation of liberty are in a care home, responsibility for managing the process will fall to the care home manager, though the local authority will be the “responsible body” with the role of signing off the authorisation.

This is one of the most significant departures from the Law Commission’s proposals.

It means that care home managers will need to arrange assessments of whether a person lacks capacity to consent to the arrangements giving rise to the deprivation of liberty, and whether they are of “unsound mind” or decide whether pre-existing assessments can be relied upon.

They must also arrange an assessment of whether the arrangements are necessary and proportionate, which must be carried out by someone with “appropriate experience and knowledge” to make the determination.

The care home manager will also need to have consulted with anyone named by the person as someone to be consulted about such arrangements, along with any attorney or deputy, carer, appropriate person or advocate.

The manager must also have determined whether the person is objecting to the arrangements – if so, their case will be reviewed by an approved mental capacity professional, a new role that will be created by the legislation designed to provide independent oversight.

The government’s view is that this will be more efficient on the basis that it will remove the duplication of assessments that care homes would be doing anyway.

However, this point is hotly contested and the proposals have raised significant concerns, including that care home managers will face a conflict of interest in being responsible as they may be reluctant to identify issues that leave themselves open to greater scrutiny or even legal liability.

Renewals introduced

Unlike DoLS, under which a fresh authorisation needs to be secured every time an existing one expires, the LPS system makes deprivation of liberty authorisations renewable. A one-year renewal can be awarded after the first year if the responsible body is satisfied that the authorisation conditions continue to be met and it is unlikely that there will be any significant change in the person’s condition during the renewal period. Following this first renewal,  further renewals of up to three years can be authorised.

In care home cases, the local authority is responsible for the renewal, but this is based on a statement made by the care home manager that the authorisation conditions are met, the person’s condition is unlikely to change significantly and the manager has carried out consultation with the same group of people that need to be consulted in the case of an authorisation.

Lord Touhig questioned the provision for three-year renewals in the second reading debate, saying 12-month reviews were more appropriate to fit with reviews of care and support plans.

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7 Responses to Five things you need to know about Liberty Protection Safeguards

  1. Jason M July 25, 2018 at 5:13 pm #

    6. It trashes the whole idea of ‘safeguards’ at all.
    7. The care home sector is not really under pressure at all, not really.
    8. Care homes can do it all because they are clearly 1 – blessed with huge amounts of time, 2 – in the best position to critique their own practice and 3 – don’t need paying.
    9. Ooh, look, here comes Baroness Hale, I wonder what she wants?

    • MrTrebus July 30, 2018 at 9:30 pm #

      ? couldnt have put it better myself

  2. Maharg July 26, 2018 at 1:48 pm #

    Now it is perceived that the introduction of the LPS will alleviate the sea of waiting lists, clearly somebody will have to wade into that sea to ascertain whether the new criteria needs to be re-evaluated against each of them name person. Has in reality most local authorities will only hold notification letters, and those who have been formally assessed will have to be reassessed to see if they fall in or out of the new proposal criteria.

  3. Terry McClatchey July 26, 2018 at 6:18 pm #

    Not convinced that it’s appropriate to describe the Joint Committee on Human Rights (of the House of Lords and House of Commons) as “influential”. They put a lot of time and effort into looking at all the Law Commission work and painstakingly took evidence from experts and people directly affected. They published the output of all their considerations and made detailed recommendations on 27th June. The Govt introduced the Bill with impact assessments and notes etc on 3rd July. It is clear that any respect Govt had for the Joint Committee’s deliberations was lip service at best. As in the article, there are many flaws in this draft legislation that seems to be entirely focused on cost saving with little regard for the protection of rights for vulnerable persons. The explanatory notes set out that “Henry VIII” powers will apply to this legislation allowing ministers to make changes including to primary legislation. Members of the House of Commons and House of Lords will need support to ensure important amendments to this poor quality Bill do not let lost in the fog of Brexit etc.

  4. remi August 7, 2018 at 12:34 am #

    Ministers need to come and shadow me doing my job to see how easy this will be for a care home manager! Worst idea I have heard in a long time.

  5. Liz August 9, 2018 at 9:52 am #

    More Chaos!
    It’s very unfortunate that whenever ministers are making decisions about people’s lives and services, they don’t consult with those on the front line who work with them and know them. Ask Local Authority Safeguarding Social workers and their Safeguarding Adults managers about their experiences of some care homes with repeated safeguarding concerns as some LAs seem to have lowered quality standards for whatever reasons. Imagine care homes running all the show!
    The issue of conflict of interest has been raised and yet to be addressed. The idea of Independent Best Intetest Assessor and Independent Mental Capacity Advocate is to eliminate bias and conflicts of interest on the part of the LA, and ensure the individual’s best interest and proportionality of the proposed action.

  6. Val August 17, 2018 at 11:27 am #

    Not convinced how the new LPS will work in practice without any additional funding from government. Also there is definitely a conflict of interest for care home managers in terms of having to scrutinise their own care practice. Many care homes staff do not fully understand the old system and now the government are suggesting that they take the lead to complete all the necessary assessments in the new system demonstrates a lack of understanding on the part of government of why Deprivation of Liberty Safeguards was introduced in the first place, which was to protect the rights of people who lack capacity in care homes or hospitals to prevent unnecessary care being done to people who can’t consent. Clearly they have not consulted with BIAs who have been completing theses assessments. BIAs have been to University to develop the skills knowledge of the law necessary to carry out these assessments and to suggest that this can now be done by a care home manager is very undermining.