Liberty Protection Safeguards (LPS)
In July 2018, the Government published a Mental Capacity (Amendment) Bill, which if passed into law will reform the Deprivation of Liberty Safeguards (DoLS), and replace them with a scheme known as the Liberty Protection Safeguards (although the term is not used in the Bill itself).
The Bill draws heavily on the Law Commission’s proposals for reforming DoLS, but generally does not address some of the wider MCA reforms that the Law Commission suggested. So proposed reforms around supported decision-making and best interests are not included, although the omissions have proved controversial, and may be challenged as the Bill goes through Parliament.
Key features of the Liberty Protection Safeguards (LPS) include:
- Like DoLS (but contrary to the Law Commission’s suggestion) they start at 18. There is no statutory definition of a deprivation of liberty beyond that in the Cheshire West and Surrey Supreme Court judgement of March 2014 – the acid test.
- Deprivations of liberty have to be authorised in advance by the ‘responsible body’
- For hospitals, be they NHS or private, the responsible body will be the ‘hospital manager’.
- For arrangements under Continuing Health Care outside a hospital, the responsible body will be the local CCG (or Health Board in Wales).
- In all other cases – such as in care homes, supported living schemes (including for self-funders), the responsible body will be the local authority.
- For the responsible body to authorise any deprivation of liberty, it needs to be clear that:
- The person lacks the capacity to consent to the care arrangements
- The person is of unsound mind
- The arrangements are necessary and proportionate.
- To determine this, the responsible body must consult with the person and others, to understand what the person’s wishes and feelings about the arrangements are.
- An individual from the responsible body, but not someone directly involved in the care and support of the person subject to the care arrangements, must conclude if the arrangements meet the three criteria above (lack of capacity; unsound mind; necessity and proportionality).
- Where it is clear, or reasonably suspected, that the person objects to the care arrangements, then a more thorough review of the case must be carried out by an Approved Mental Capacity Professional.
- Where there is a potential deprivation of liberty in a care home, the Bill suggests the care home managers should lead on the assessments of capacity, and the judgment of necessity and proportionality, and pass their findings to the local authority as the responsible body. This aspect of the Bill has generated some negative comment, with people feeling that there is insufficient independent scrutiny of the proposed care arrangements.
- Safeguards once a deprivation is authorised include regular reviews by the responsible body and the right to an appropriate person or an IMCA to represent a person and protect their interests.
- As under DoLS, a deprivation can be for a maximum of one year initially. Under LPS, this can be renewed initially for one year, but subsequent to that for up to three years.
- Again, as under DoLS, the Court of Protection will oversee any disputes or appeals.
The new Bill also broadens the scope to treat people, and deprive them of their liberty, in a medical emergency, without gaining prior authorisation.
It remains unclear when the Bill may pass into law, and then when it may be implemented.