The bill to replace the Deprivation of Liberty Safeguards (DoLS) has been agreed by Parliament, meaning a new system for authorising deprivations will likely come into force next year.
The Mental Capacity (Amendment) Bill completed its final parliamentary stage this week as the House of Lords and Commons agreed a final version of the legislation (24 April), meaning it will become law shortly when it receives Royal Assent.
As a result, a new model for authorising deprivations of liberty in care, dubbed the Liberty Protection Safeguards (LPS), will replace the DoLS system.
It is expected that the new model will be implemented by Spring 2020, though the government has confirmed that the DoLS will run alongside the LPS for a year after implementation to ease the transition of existing cases.
What the new law means for you
Find out how the law around authorising deprivation of liberty will change under the impact of the Liberty Protection Safeguards in this guide to the legislation written by Tim Spencer-Lane, who advised the government on the bill.
Following the passage of the bill, the government will draft a series of regulations and produce a code of practice – which will be subject to consultation – setting out the detail of how the LPS will work.
Why a new system has been introduced
The LPS is designed to provide a more streamlined alternative to DoLS, which has reached breaking point because of the substantial caseload increase triggered by the 2014 Supreme Court Cheshire West judgment. This effectively lowered the threshold for what constituted a deprivation of liberty in care, leading to a rise in DoLS applications in England from 13,000 in 2013-14, to 227,400 in 2017-18, with a backlog of 125,630 at the end of the year.
The government has sought to tackle this through the LPS by, for example, enabling deprivation of liberty authorisations to be renewable and to last up to three years in certain circumstances, instead of a maximum of one under DoLS; transferring responsibility for authorising deprivations from local authorities to NHS bodies in certain cases; and reducing the number of cases in which specialist assessors were required.
However, the bill’s introduction last summer prompted significant concerns among practitioners, politicians and providers that the government had removed valuable safeguards from detained people in an effort to streamline the system.
The bill has changed significantly since its introduction last July, under the pressure of campaigners and through the work of opposition members of the House of Lords. But this has not been sufficient to allay concerns.
In February, over 100 care organisations and charities called for the bill to be paused on the grounds that it posed a threat to human rights. Since then, the bill has only changed marginally, and earlier this week, one of those organisations, the Voluntary Organisations Disability Group, said many of its concerns over the level of safeguards and the adequacy of funding remained unresolved.
One of the most contentious issues surrounding the bill has been the debate over whether to include a definition of what constitutes a deprivation of liberty on the face of the legislation.
A government amendment in January added a definition to the bill, following calls from peers to provide clarity to practitioners about when the LPS would be applied in practice. However, the proposed definition, which set out when a person would not be deprived of their liberty, was overturned by peers, who said it was “very difficult to understand”.
Peers installed another, positive definition of a deprivation of liberty in its place; but the government said that its wording meant that it would not be fully in line with Article 5 of the European Convention on Human Rights, the basis for deprivation of liberty law. This would mean the LPS would not cover some deprivations of liberty, which would then have to be authorised by the Court of Protection.
With Parliament unable to agree upon a definition, the government tabled an amendment to remove a statutory definition from the bill completely, which was approved by the Lords this week.
In place of a definition, guidance about what sorts of arrangements constitute a deprivation of liberty will be now be provided in the code of practice on the LPS, offering clarification for practitioners and individuals.
The code will be reviewed within three years of the bill coming into force, and then subsequently every five years.
However, the government’s failure to come up with a definition was criticised this week by crossbencher Baroness Murphy, who labelled the refusal to provide a realistic definition a ‘cop-out’.
She said that the decision to provide clarification in the code of practice, opposed to inserting a clause in statute, was a mistake and would leave people waiting on case law to offer guidance.
Care home manager role scaled back
The reduction in the proposed role of care managers under the LPS was another key change made to the bill during its parliamentary passage.
Originally, the bill specified that, whenever the LPS was applied in a care home, the manager would be responsible for the almost the entirety of the process, including:
- arranging assessments to determine whether the authorisation conditions were met and reporting to the local authority – the responsible body – on this;
- deciding if the cared for person was entitled to an advocate;
- determining whether the person was objecting to arrangements, triggering a pre-authorisation review by an approved mental capacity professional (AMCP), a specialist practitioner;
- arranging consultation with named people close to the person on their wishes and feelings.
On the basis of evidence supplied by the care home manager, the local authority would then decide whether to sign off on the deprivation of liberty request or not.
But peers and professionals expressed doubts whether managers had the skills and knowledge to carry out or commission the required assessments, of the person’s capacity and mental health, and whether a deprivation of liberty was necessary and proportionate.
Moreover, critics argued that care home managers would face a potential conflict of interest between their responsibility for ensuring the smooth running and financial health of the home and their role as the guarantor of the service user’s rights and safeguards under LPS.
Local authorities given a choice
In response to the criticisms, the government amended the bill to scale back the responsibilities of care home managers. The final bill gives local authorities the option of giving these responsibilities to the care home manager or undertaking the duties themselves. This would act as a check to ensure that the care home was suitable to oversee the process.
Another change to the bill has ensured that care home managers cannot commission anyone with a “prescribed connection” to the care home to carry out assessments. It is hoped this will prevent the assessor being insufficiently independent from the home, thus eliminating any potential conflict of interest.
The bill was also changed so that managers would no longer be responsible for notifying a local authority if an independent mental capacity advocate (IMCA) should be appointed.
Increased role for AMCPs
In contrast, the role played by AMCPs has been scaled up through changes to the bill, responding to concern around protections of some of society’s most vulnerable members.
AMCPs will be practitioners with specialist training in the Mental Capacity Act – likely to be mostly social workers – whose role will be to provide an independent check, known as a pre-authorisation review, on whether the conditions for a deprivation of liberty under LPS have been met.
However, unlike the best interests assessor role under DoLS, an AMCP would not be required in every case and originally would only be required where there was a reasonable belief that the person is objecting to the arrangements.
Peers and professionals expressed concern over these plans, stating that there would be insufficient protections for people who were not evidently objecting to their arrangements but were otherwise particularly vulnerable.
All independent hospital cases to be checked
Amendments made to the bill now mean that responsible bodies are required to consider the views of any ‘relevant person’ – someone engaged in caring for the cared-for person or interested in the cared-for person’s welfare – about the wishes of the cared-for person, in determining whether they were objecting to arrangements.
Consequently, any family member or care worker who identifies that a cared-for person is objecting to arrangements can raise the matter with the responsible body and trigger a review by an AMCP.
Moreover, the bill now states that, in all cases where a person is receiving care manly in an independent hospital, an AMCP must review the case. This responded to concerns that independent hospitals, who would originally have acted as the responsible body for hospital placements, would face a conflict of interest because they had an incentive to keep people as inpatients to retain their income.
In a later change to the bill, independent hospitals were stripped of responsible body status, with this role passing to the relevant local authority in such cases.
Other changes made to the bill during passage through Parliament:
- the LPS was extended to 16-and-17-year-olds, having originally only applied to those 18 and over
- reference to a person being “of unsound mind”, one of the three original requirements that must be met before a person is deprived of their liberty, was removed from the bill and replaced with the person having a mental disorder, in line with the Mental Health Act 1983