Deprivation of liberty and the Mental Capacity Act – the way forward

By Tim Spencer-Lane

The government has announced that the implementation of the Liberty Protection Safeguards (LPS) is being delayed beyond this Parliament. This short article explains the implications of this decision for the health and social care sector, and the likely way forward.

What is the LPS?

The LPS scheme was introduced through the Mental Capacity (Amendment) Act in 2019 as the planned replacement system for the Deprivation of Liberty Safeguards (DoLS).

The LPS was intended to provide protection for people aged 16 and above who need to be deprived of their liberty in order to receive their care or treatment and who lack mental capacity to consent to their arrangements.

It was designed to provide a more efficient framework for authorising deprivation of liberty that was capable of delivering meaningful protections protections to citizens under Article 5 of the European Convention on Human Rights (the right to liberty).

However, the 2019 act has not been commenced. The government had hoped to fully implement the LPS by April 2022. But, due mainly to the impact of the Covid-19 pandemic, its implementation was delayed.

From March to July 2022, the Department of Health and Social Care and the Welsh Government ran a public consultation on their proposed policy and implementation plans for the LPS. This included a revised draft code of practice and draft statutory instruments.

The consultation document did not set a new implementation date but instead explained that a new date for implementation of the LPS would be announced when the government’s consultation response was published.

Why is LPS being ‘paused’?  

This is not clear from the government’s announcement. Reference is made to this decision being part of the “prioritisation work” on social care which has seen investment in workforce development, technology, and new data and oversight. It is possible that the decision has, at least partially, been taken as a result of the current pressures on NHS services; one of the key reforms under the LPS would have been to give hospital trusts and integrated care boards (ICBs) new responsibility for authorising deprivations of liberty.

It is also possible that the significant pressures on social care budgets have been a factor. Despite promising long-term financial cost savings for local authorities and the NHS, the LPS did come with start up costs of around £86m, which is unlikely to have found favour with the Treasury.

What will happen going forward?

The effect of the pause is that the DoLS will continue to provide the main legal framework for authorising deprivation of liberty under the Mental Capacity Act for the foreseeable future.

In broad terms, the DoLS establish an administrative process for the authorisation of deprivation of liberty in hospitals and care homes, in cases where an adult lacks capacity to consent to being accommodated there for care or treatment. The government’s announcement does not include any commitment to reform either the legislative framework for the DoLS or the DoLS code of practice.

This means that in England, local authorities will continue to be the ‘supervisory body’ for all cases in hospitals and care homes; under the LPS, NHS trusts would have been responsible for those being deprived of liberty in NHS hospitals.

Local authorities will continue to need to arrange six DoLS assessments in order to give a standard authorisation. Under the LPS, this would have been reduced to three assessments) and the ‘relevant persons representative’ role – which was to be replaced under the LPS by the ‘appropriate person’ role -will also continue.

Importantly, the best interests assessor (BIA) role will remain. Under the LPS a new professional role would have been established, the approved mental capacity professional. This was intended to build on the BIA role and provide an additional layer of scrutiny and enhanced oversight for people who needed it most. Under the DoLS, the best interests assessor will continue as the cornerstone of the protection offered to people facing deprivation of liberty.

Urgent authorisations, which allow hospitals and care homes to deprive people of liberty for up to two weeks, will also remain in place.

Under the LPS, urgent authorisations would have been replaced by an amended section 4B of the Mental Capacity Act 2005. Those amendments would have allowed decision makers to take steps to deprive a person of liberty without an authorisation being in place but only to enable life-sustaining treatment or to prevent a serious deterioration in the person’s health. Such steps could be taken pending the outcome of an LPS referral or where there was an emergency, and there was no statutory time limit for the use of section 4B, unlike with urgent authorisations under DoLS.

What will happen to the DoLS backlog?

The LPS scheme had been designed to ensure that all cases could be processed in a timely manner, and, therefore, remove the backlogs that have grown under DoLS.

The latest figures show that, nationally, the number of DoLS cases not completed in 2021-22 was an estimated 124,145 (4% more than the previous year). The effect of the backlog means that individuals are often left without safeguards for an extended period of time and local authorities are not meeting their statutory duties. The government has not yet announced any new plans to deal with the DoLS backlog.

What will happen to deprivations of liberty in the community?

The LPS was intended to apply to all settings, not just hospitals and care homes. This would include, for instance, deprivations of liberty in supported living, shared lives, and private and domestic settings. The effect of the pause means that all cases of community deprivation of liberty must continue to be taken to the Court of Protection.

What about the IMCA role?

Under the LPS, there would also have been an extension of rights to an independent mental capacity advocate (IMCA) and to non-means tested legal aid for challenging an authorisation, to cases where a person was being deprived of liberty outside of hospitals and care homes. Under the DoLS, these new rights will not apply.

What about children and young people?

The LPS was to have applied to everyone aged 16 and over, whilst the DoLS only applies to adults. This means that the deprivation of liberty of young people who lack the relevant capacity aged 16 and 17 will continue to require a court order (either from the Court of Protection or the National Deprivation of Liberty Court).  The rights under the LPS to an IMCA and to non-means tested legal aid for young people aged 16 or 17, also do not apply under the current legal framework.

Will LPS ever be implemented?

This is difficult to tell. The pause is for ‘this Parliament’, which will last until January 2025 (unless there is an early general election). It will then be up to the new government to decide whether it wants to implement the LPS.

Will the changes to the MCA code go ahead?

The government also consulted on a revised Mental Capacity Act code of practice in 2022. The intention was to have a single code that incorporated guidance on how the LPS should be implemented. The government has not confirmed whether it will proceed to update the existing Mental Capacity Act Code in the light of that consultation.

Will the principle of mainstreaming practice be maintained?

The policy intention was for LPS practice to become part of mainstream healthcare and social care assessments and planning, including the Care Act 2014 care and support planning. This integration was intended to make the overall process more straightforward for the person and easier for local authorities, by reducing duplication. It is not clear whether a similar policy will be taken forward under the DoLS.

Tim Spencer-Lane is a lawyer specialising in adult social care, mental capacity and mental health. He is also legal editor of Community Care Inform.