28 April 2021
By Alex Ruck Keene, Barrister, 39 Essex Chambers
From Deprivation of Liberty Safeguards to Liberty Protection Safeguards
In this blog, I suggest that there is a lot that can be done to start applying ‘LPS thinking’ now, even whilst we wait for implementation.
The first is front-loading thinking about the core components as early as possible in any care planning process. It is already necessary to think in care planning about the person’s decision-making capacity, whether any arrangements which may be put in place to secure their care and treatment will give rise to a confinement, and about there is any other less restrictive way in which to secure their care and treatment. But the earlier that this thinking can be considered and documented, the closer you will be coming to the LPS model. And, even under Deprivation of Liberty Safeguards (DoLS), the better quality the documentation, the lighter touch scrutiny the assessors will have to give it before they reach their conclusions.
When it comes to capacity, it is important – already – to consider whether the person can process the information that they are confined (See the case below). This will be central to the capacity test to be applied to LPS in due course, so getting familiar with this now will ease the transition.
Similarly, when it comes to thinking about the best interests requirement under DoLS, the greater the focus upon the consideration of necessity and proportionality (which forms part of the test), the readier you will be for the total focus upon this aspect under LPS.
Finally, making applications for so-called ‘community DoL’ orders is not only necessary at the moment to provide lawful authority to deprive someone outside the scope of DoLS. It is also the best form of training for LPS that can you undertake – it is, in essence, asking the same questions, and posing the same requirements in terms of such things as consultation, as will be required under the LPS. The sole difference is that, at present, the final application goes to judge, rather than, as will be the case in future, it will for Pre-Authorisation Review organised by the Responsible Body. For more detail about how to make such applications, see the guidance note below.