The government’s decision to shelve the Liberty Protection Safeguards (LPS) is “an unacceptable blow” to the thousands of people currently unlawfully deprived of their liberty.
That was the damning verdict of the country’s leading advocacy providers, VoiceAbility, after the government announced last week that it would not implement the LPS this side of the next general election, which will take place before the end of 2024.
The Welsh Government dubbed the decision to delay implementation of the scheme, which would apply in England and Wales, “deeply disappointing”, with the Association of Directors of Adult Social Services (ADASS) also expressing concerns.
The decision, announced in a letter from the Department of Health and Social Care (DHSC) to stakeholders last week, has cast doubt on whether the system for authorising deprivations of liberty in care settings for those who lack capacity to consent will come into force at all.
What the LPS delay means for you
- For insight on the legal implications, read CC Inform legal editor Tim Spencer-Lane’s piece on deprivation of liberty and mental capacity – the way forward.
- Tim explores the implications in more detail in the latest edition of the Court Report webinar series, which is available to CC Inform Adults subscribers.
- For an analysis on the implications for practice, check out former national DoLS leads group chair Lorraine Currie’s article on making a success of DoLS in the wake of the LPS delay.
Future implementation in doubt
The Labour Party, who on current polling evidence is most likely to form the next government, voted against the Mental Capacity (Amendment) Act 2019, the legislation that provides the basis for the LPS. This was on the grounds that it would weaken the existing safeguards provided by the Deprivation of Liberty Safeguards (DoLS), within care homes and hospitals, and Court of Protection authorisations in other settings.
And in announcing the news, the DHSC gave no indication of an intent from the current government to implement the LPS should it return to power.
It merely promised to publish a summary of responses to last year’s consultation on the draft regulations and statutory code of practice, which had set out how the government had intended to implement the scheme. It also highlighted the importance of health and social care providers making appropriate DoLS applications.
The DHSC also said it had moved civil servants resposible for the LPS onto other policy areas.
The department justified the decision on the grounds of prioritising its other adult social care initiatives, as set out in last week’s policy paper, Next steps to put people at the heart of care. This was itself criticised for watering down previous promises made in the government’s 2021 adult care white paper.
Nine-year project to tackle implications of Cheshire West
The development of the LPS was the culmination of a project initiated in 2014 to deal with the implications of the Supreme Court’s landmark Cheshire West judgment, in the wake of which annual DoLS caseloads have risen twentyfold.
Deprivation of liberty timeline
- March 2014: House of Lords committee declares DoLS ‘not fit for purpose’
- March 2014: Cheshire West ruling heralds sharp rise in DoLS cases
- June 2014: ADASS says Cheshire West will lead to tenfold rise in annual DoLS caseload
- September 2014: Government asks Law Commission to review DoLS as part of wider review into deprivation of liberty frameworks
- July 2015: Law Commission sets out initial reform proposals, dubbing existing system of authorisations ‘deeply flawed’
- March 2017: Law Commission proposes new system for authorising deprivations, the Liberty Protection Safeguards, encompassing all settings and people aged 16 and above.
- March 2018: Government agrees to legislation to implement model similar to Law Commission proposal
- April 2019: Mental Capacity (Amendment) Act 2019 becomes law, providing legislative basis for LPS
- June 2019: Government proposes implementation date of October 2020
- July 2020: Implementation delayed until April 2022
- December 2021: Government confirms delay beyond April 2022 but with no replacement date
- March 2022: Government publishes consultation on draft regulations and code of practice for implementing LPS
- October 2022: Social Work England reports LPS implementation due in October 2023, but DHSC says this is incorrect
- November 2022: Latest DoLS figures show caseloads have reached record levels
The LPS was designed to streamline the system of authorising deprivations of liberty in several ways, including:
- By creating one system of authorisation, removing the need for councils to apply to the Court of Protection for cases that fall outside the ambit of DoLS, which applies to those aged 18 and over in care homes and hospitals.
- By reducing the number of assessments required from six under DoLS to three under LPS.
- By integrating the process into existing care assessment and planning systems under the Care Act 2014 and NHS continuing care.
- By making NHS bodies – and not just councils, in England – responsible for authorising deprivations of liberty.
In doing so, it was intended to tackle the substantial backlogs of DoLS cases, which stood at 124,145 in England, as of March 2022, implying that many thousands of people are unlawfully deprived of their liberty.
‘Unacceptable blow to those unlawfully deprived’
In responding to the government’s decision, VoiceAbility chief executive Jonathan Senker pointed to the seriousness of this issue.
“The government’s decision is an unacceptable blow to the thousands of people who are being unlawfully deprived of their liberty,” he said. “This means people are held in places they don’t want to live or face restrictions on where they go, without a legal basis for doing so.
“Imagine not being able to leave the place you live in even to get some fresh air or to go for a walk in the park? Or being separated from your family, spouse or partner, without an explanation that you understand as to why, or lacking any effective way of challenging this. The current system is failing thousands of people right now and isn’t fit for purpose.”
Senker added: “Urgent change is needed to protect people’s rights. The government must work with local authorities now to ensure people’s voices are heard and their rights respected.”
Welsh Government ‘deeply disappointed’
In a written statement, the Welsh Government made clear it did not support its UK counterpart’s decision.
Deputy minister for mental health and wellbeing Lynne Neagle said: “Welsh Government is deeply disappointed with this decision not to proceed with implementation at this time. The right to liberty is one of our most fundamental human rights.”
The Welsh Government also consulted last year on draft regulations to implement the LPS, and Neagle said it had received “significant evidence and support” from stakeholders on implementing the scheme.
“In light of the UK Government decision, we will need to consider how we strengthen the current DoLS system in Wales and continue to protect and promote the human rights of those people who lack mental capacity,” she added.
As part of this, she said the Welsh Government would repeat, in 2023-24, the £8m it provided for LPS implementation last year, “to ensure that that these rights are protected ahead of any future implementation of the LPS”.
Concern from adults’ directors
For ADASS, joint chief executive Cathie Williams said: “So many people drawing on and working in adult social care and social work will be frustrated and disappointed about this delay to the implementation of Liberty Protection Safeguards.
“ADASS has noted the government’s decision to defer implementation of the LPS scheme with concern, given that we know thousands of people remain without these protections in law as a result of long waiting lists and lack of investment. Consequently, we will be discussing this before talking in more detail with DHSC officials about what support is needed in the short to medium term.”
A DHSC spokesperson said: “Delaying the implementation of the Liberty Protections Safeguards (LPS) was one of a number of difficult decisions taken in order to prioritise work on social care which is seeing us invest in workforce development, technology, and new data and oversight.
“This decision has not been taken lightly and we recognise that this delay will be disappointing news for many of the people and organisations who have worked closely with us. Although the LPS is delayed beyond the life of this Parliament, our intention is to publish a summary of the responses we received at consultation as soon as practicable.”
MCA code of practice update
The LPS delay begs the question of what will happen to proposed changes to the MCA code of practice – outside the LPS – that the government consulted on last year.
The DHSC said it was working with the Ministry of Justice on the next steps and would provide an update as soon as possible.