The legislation which is replacing Deprivation of Liberty Safeguards (DOLs) known as the Liberty Protection Safeguards (LPS) has now received Royal Assent. This welcomes a new system for the authorisation of DOL in care.
The Liberty Protection Safeguards: Changes to DOLS
Liberty Protection Safeguards
The legislative change from Deprivation of Liberty Safeguards (DOLs) to a new scheme called Liberty Protection Safeguards (LPS) has been triggered by the difficulties associated with the current regime borne from the Cheshire West case law. There are a significant number of cases where DOLs applies, such as care homes and hospitals, and also situations which need court authorisation but DOLs does not apply.
The new Bill does not offer a statutory definition of a ‘deprivation of liberty’ but further guidance is expected to be provided in the accompanying Code of Practice.
Mental Capacity Act
Section 4B of the Mental Capacity Act 2005 (MCA) will provide authority to deprive someone’s liberty in the following circumstances:
- Where a decision relevant to whether there is authority to deprive someone of their liberty is being sought from the Court of Protection;
- Where steps are being taken to obtain authority under Schedule AA1 of the MCA (there will be no more urgent authorisations as under DOLS);
- In an emergency.
There is a duty on responsible bodies to appoint an appropriate person under Part 5, Schedule AA1 to give representation and support while arrangements are being proposed or being authorised. The Code of Practice is expected to consider whether the duty is applicable during the assessment process.
The new administrative scheme will apply to all individuals aged 16 or above. The Schedule will give responsible bodies the authority to approve deprivations of liberty as follows:
- Hospital Managers in National Health Service hospitals;
- The Clinical Commissioning Group or Local Health Board regarding Continuing Health Care arrangements;
- The local authority where the local authority arranges care, for self-funders and those receiving care provided in independent hospitals.
The following three conditions must be satisfied:
- The person must lack capacity to consent to the arrangements;
- The person must have a mental disorder;
- Arrangements must be proportionate and necessary to prevent harm to the person. Consideration of likelihood and seriousness of harm are key factors.
For capacity and mental disorder assessments, assessments from previous authorisations of deprivation of liberty can be used. The assessment of whether the authorisation is ‘necessary and proportionate’ must be completed at the relevant time.
All three assessments could be carried out by the same person with appropriate experience and knowledge, however, further guidance regarding this is expected to be included in the Code of Practice.
Responsible bodies will need to consult with the person in question to ascertain their wishes and feelings. A pre-authorisation review should also be conducted if there has been no previous involvement of the responsible body in the person’s care and treatment.
Where the person is objecting to the deprivation, the pre-authorisation review should be conducted by an Approved Mental Capacity Professional (AMCP). The AMCP must decide whether the authorisation conditions are met. Originally, care home managers were going to be responsible for conducting these assessments. Now the responsible body will need to decide if it should conduct the assessment or if the care home manager should do so.
There is a right for the person in question to be provided with information as soon as possible after authorisation for the deprivation of liberty. Regular reviews of the authorisation will need to be conducted by the responsible body or care home.
From the outset of the process to when authorisations come to an end, the person should be supported by an appropriate person or Independent Mental Capacity Advocate (IMCA), however the appropriate person must not be directly involved in the care and treatment of the person in question in a professional role. If the person has capacity to consent, consent should be obtained, but if they lack capacity, the responsible body needs to be satisfied that the appropriate person would act in their best interests. Further, the appropriate person must agree to act on the person’s behalf. If there is no appropriate person available, the responsible body must take “all reasonable steps” to appoint an IMCA. However, what constitutes “all reasonable steps” is not specified in the Bill, but guidance is expected in the Code of Practice.
Authorisations will be open to changes by the responsible body as long as there is consultation with the person, they are reasonable changes and there is a review. It is likely that further conditions will be attached to this as time goes on.
There must be a regular programme of reviews and statutory triggers for review. This includes any request for a review by a person with an interest in the arrangements.
Liberty Protection Safeguard authorisations can be renewed for a year in the first instance and then for periods of three years afterwards. Responsible bodies must be happy that conditions continue to be satisfied, a consultation has been conducted and no significant changes are likely. These tasks can be delegated to care home managers by responsible bodies.
Interface with Mental Health Act 1983 and Mental Capacity Act 2005
Part 7, Schedule AA1 sets out the interface between the Mental Health Act (MHA) and Liberty Protection Safeguards (LPS). The Bill broadly maintains the current position.
Patients detained under the MHA in hospital and objecting cannot be subject to authorisation under Schedule AA1. However, they could be subject to authorisation if they are in the community and the authorisation does not conflict with their MHA requirements.
It is also possible for patients detained under the MHA to have LPS authorisations where the LPS is solely connected to arrangements to enable physical healthcare and treatment and where an unrelated mental disorder is the basis for detention.
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