The government has told councils and other sector bodies “not to prioritise” implementing the replacement for the Deprivation of Liberty Safeguards with the previously slated October 2020 go-live date now an impossibility.
The government is yet to say when the Liberty Protection Safeguards’ implementation may be delayed until but said it would provide “further updates as soon as possible”.
The government said last year that its “intention” was for the LPS to come into force in October of this year. But to make that happen, it would have to consult on a code of practice and regulations detailing how the system would work in detail.
Such a consultation would take at least 12 weeks, after which the government would have to report on responses and produce a final code and regulations, which would then have to be laid before Parliament, meaning an October go-live date is now impossible.
Perhaps more significantly, the organisations chiefly responsible for implementing the LPS – councils, care providers, clinical commissioning groups and NHS trusts – are in the front line of managing the Covid-19 pandemic and face an autumn of managing a recovery or, potentially, dealing with a second spike in the coronavirus.
A Department of Health and Social Care spokesperson said: “We are aware of the pressures the pandemic is putting on the health and social care sector and are not asking the sector to prioritise LPS preparation during this time.”
About the LPS
Like DoLS, the LPS establishes a process for authorising arrangements enabling 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 (ECHR), where the person lacks capacity to consent to the arrangements. It also provides for safeguards to be delivered to people subject to the scheme.
Under LPS, a responsible body may authorise arrangements if the following “authorisation conditions” are met:
- the person lacks capacity to consent to the arrangements;
- the person has a mental disorder within the meaning of section 1(2) of the Mental Health Act 1983; and
- the arrangements are necessary to prevent harm to the person and proportionate in relation to the likelihood and seriousness of harm to the person.
Whereas the DoLS only apply to hospitals and care homes, the LPS can be used in other settings, for instance supported living, shared lives and private and domestic settings. The LPS are also not tied to accommodation or residence; they could be used, for example, to authorise day centre and transport arrangements. Authorisations can also be given for arrangements being carried out in more than one setting.
Whereas the DoLS apply to those aged 18 and over, the LPS apply to people aged 16 and over. This brings the LPS into line with the rest of the MCA which applies to 16 and 17-year-olds (with a few exceptions). It would also mean that a court application is no longer required to authorise the deprivation of liberty of a 16 or 17-year-old who lacks the relevant capacity.
Community Care Inform Adults users can read a fuller analysis of the LPS here.
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So hopefully this piece of badly thought out legislation which actually reduces the safeguards for vulnerable people will be kicked into the long grass. It removes the independent assessors from the assessment process and removes the right to independent representation.
This is not to mention how does a person that lacks capacity (I.e Dementia) begin to challenge the fact they are being kept somewhere they may not want to be?
The DOLS may not be perfect but it does work, could do with some fine tuning and reducing some of the forms etc but it has enabled vulnerable people to have some protection and rights.
The unspoken aspect of de-prioritising LPS implementation is that there is also an invitation to de-prioritise the application of DoLS. One of the main reasons for introducing the LPS was to deal with the widespread failure of compliance with DoLS. We know that many people in care home are subject to high levels of isolation in single rooms and are going without contact with family members. For those able to make a capacitous choice to “self-shield” that may be challenging personally but entirely legal. For those without the capacity to understand, retain and weigh the balance of the risks and sustained privations required in a choice to comply with public health advice, that is more problematic. The current government advice on DOLS during Covid encourages the expectation that there will be little increase in authorisations. That presumption appears to require a lot of “blind eye” turning and a presumption that compliance with Governement public health advice is automatically in a person’s “best interests” and beyond the range of “unwise” decision making that is permissible for persons without full mental capacity.