Liberty Protection Safeguards: delayed or doomed?

On 5 April 2023 the Department of Health and Social Care announced the implementation of the Liberty Protection Safeguards (LPS), the Mental Capacity (Amendment) Act 2019, will be delayed “beyond the life of this Parliament” (therefore likely beyond Autumn 2024).

The Government has set out a plan for adult social care reform, with the aim of putting “People at the Heart of Care” (Next steps to put People at the Heart of Care – GOV.UK (www.gov.uk)). This delay is disappointing for all concerned, not only for lawyers and campaigners in this field who recognise the current system is not suitable, but crucially for those individuals waiting for Deprivation of Liberty Safeguards (DoLS) assessments who remain deprived of their liberty but without the necessary protection under the law. The fact LPS, or amending/improving the DoLS process, is not considered to be a key proponent of putting “people at the heart of care” rubs further salt in the wound. It remains unclear why LPS is being paused based on this announcement.

The Mental Capacity (Amendment) Act 2019 was passed in May 2019 and was originally due to be implemented in October 2020. The draft Code of Practice was out for consultation between March and July 2022. Since then all interested parties have been awaiting the date for implementation and the final version of the Code of Practice, as the proposals were not without controversy and debate.

What is the LPS?
It was intended to provide protection for anyone aged 16 and over who needs to be deprived of their liberty in order to receive their care or treatment and who lacks the mental capacity to consent to their arrangements. Under the LPS there would have been an extension of rights to an independent mental capacity advocate (IMCA) and non-means tested legal aid for challenging an authorisation where a person was being deprived of their liberty outside of hospitals and care homes. This means those cases will still be without legal aid funding.

The aim was to give a more efficient framework to authorise deprivations of liberty and ensure those affected have their Article 5 (right to liberty) of the ECHR properly protected.

What does it mean for now?
In short, ‘we are where we are’: the current DoLS framework will continue under the Mental Capacity Act for the foreseeable future. There remains the requirement for deprivations of liberty to be authorised through the Court of Protection. DoLS can only be applied to those over the age of 18 and in care homes and hospitals, therefore this leaves local authorities, healthcare providers and families in limbo when dealing with those deprived of their liberty in the community or under the age of 18 (these will continue to be dealt with in the Court of Protection).

There remains a large backlog of cases and delays in authorisations for those in care homes and hospitals – in 2021-2022 the number of DoLS cases not completed was estimated to be 124,145 which is 4% higher than the previous year[1]. This means individuals are left in potentially unsuitable care arrangements without safeguards for long periods of time, are not in the court arena to be challenged, and in some cases local authorities are not meeting their statutory duties.

There is a significant need to improve the understanding and awareness of how the Mental Capacity Act works and the duties and responsibilities within it amongst health and social care professionals. Again, it is disappointing that there is no mention of the Mental Capacity Act or any investment in training in this area within the government’s announcement.

It appears we return to a period of ‘wait and see’: firstly for a “summary of responses to the consultation” which will be publicised at an unknown date, whether any reforms are proposed before the end of this parliament to alleviate the acute issues in this area, and whether a future government will carry on with the LPS reform in 2025 or later. It is alarming that the reform may not take place for the best part of a decade since the process began, an unsatisfactory state of affairs when this issue concerns individuals who are being deprived of their liberty.

[1] DoLS caseloads hit record levels – Community Care