Liberty Protection Safeguards consultation ‘to launch early 2022’, but new target date unlikely

The government has confirmed that the Liberty Protection Safeguards (LPS) will not be implemented in April 2022, adding that it is “aiming to launch” a long-awaited consultation on the Deprivation of Liberty Safeguards (DoLS) replacement early in the new year.

The acknowledgment that the target date will not be met is a formality, with the need for ministers to consult on draft regulations and a code of passage, and the former to pass through Parliament, rendering the proposed timescale impossible.

But the news, conveyed via a letter to LPS national steering group members, provides some clarity to local authorities and other organisations which until now have been forced to continue preparing for a possible April implementation.

The LPS had originally been intended to come into force in October 2020, before the impact of the coronavirus pandemic on health and social care services led to the revised target of next spring.

In the government’s letter, the Department of Health and Social Care’s deputy director for service quality Helen Tabiner said it was not likely that a fresh implementation target would be set at the time the consultation begins.

“The LPS are a complicated set of reforms and we expect that a wide range of stakeholders will submit detailed consultation responses about our plans,” Tabiner wrote. “The government will need time to consider those carefully once the consultation has closed, before making final decisions about the design of the LPS and plans for implementation, including future funding plans.

“We think it would be premature to set a new implementation date or confirm any funding to support implementation before we have been able to consider responses to the consultation,” she added.

Despite the consultation being slated to arrive soon after the new year, the DHSC letter added the caveat that this was dependent on the ongoing impact of the Omicron Covid-19 variant.

‘Hard to galvanise implementation planning’

Responding to the letter, Lorraine Currie, the chair of the national DoLS lead group said it was a case of “we asked, and we got”.

Currie had previously described the lack of formal cancellation of the April 2022 target as “incredibly difficult and frustrating” and called on the government to clarify that organisations did not need to continue urgently planning towards the date.

But Currie said that the lack of any clarity on when a fresh date would be set would make it “very hard to galvanise implementation planning and support for a new scheme, among the many other demands on social care”.

“How can this be prioritised when other pressing matters do have dates and deadlines?” she asked.

Claire Webster, interim service manager for North Yorkshire council’s MCA/DoLS team, said she was “thankful” for the official confirmation of the delay.

“While we understand we no longer need to work towards April implementation, there remains much still unknown about LPS and the implementation requirements, and hope that a new timeline will be given as soon as possible and that it will provide enough notice and time to understand the details contained within the yet-to-appear codes of practice,” she added. “I think implementation needs to be considered alongside Mental Health Act reform and Human Rights Act review, to ensure that the relevant safeguards are provided to people as intended.”

‘Wise or worrying?”

Currie questioned whether the lack of any new target date was “wise or worrying” in the light of the government’s planned reforms to the Human Rights Act.

The government implicitly criticised the landmark Cheshire West judgment – which lowered the threshold for a deprivation of liberty, leading to a vast increase in cases – as it set out its plans to replace the Human Rights Act 1998 with a “bill of rights”. It cited the case as an example of public policy priorities and decision-making affecting public expenditure shifting from Parliament to the courts.

“While we wait for news, for replacement schemes, for future direction, people remain potentially unlawfully deprived of liberty,” Currie said. “We have numerous unanswered questions right now, mainly how long we can continue to prop up a system that everyone seems to agree is not fit for purpose but has to try its best to provide liberty protection to hundreds of thousands of people – when it was designed for 20,000 at its height.”

A Department of Health and Social Care spokesperson said: “The Deprivation of Liberty Safeguards (DoLS) system protects the human rights of adults in hospitals and care homes and ensures vulnerable people are not being unnecessarily detained. It is vital these systems are kept up to date and work for both those they serve and the social care sector.”

The spokesperson added that the DHSC would “launch a public consultation on an updated system as soon as possible in the new year.”