Three years after the landmark Cheshire West ruling, the Law Commission published its long awaited report on 13 March 2017, with a draft Bill for Deprivation of Liberty Safeguards (DoLS) to be replaced in their entirety by a new system called Liberty Protection Safeguards, or LPS.
Who will the Liberty Protection Safeguards apply to?
The new safeguards will apply to people who are 16 years and above who lack capacity to consent to care and treatment in any setting (not just care homes and hospitals), including supported living, shared housing, respite care, private and domestic arrangements.
What can be authorised under LPS?
Whereas the existing DoLS simply authorise “deprivations of liberty”, LPS will apply to arrangements that may give rise to a deprivation of liberty. For example, authorisations can cover arrangements:-
For a person to live in and receive care or treatment in one or multiple places; or
For a person to be transported to and between those places.
Authorisation will have to be obtained in advance unless the situation is genuinely urgent.
Who will be responsible for authorisation?
A Responsible Body will be responsible for authorisation under this new scheme. This would be the NHS Trust if the arrangement is carried out in a hospital, the Clinical Commissioning Group if the arrangement is provided through continuing health care, or the local authority in all other cases.
What are the requirements for authorisation?
When a deprivation of liberty is identified, the responsible body has to carry out:-
- A capacity assessment;
- A medical assessment; and
- An assessment that the arrangement is necessary and proportionate.
Before authorisation is given, a prescribed list of conditions must be met. These include consultation with family and those involved in the person’s care, an independent review of the responsible body’s decision or obtaining the approval of an Approved Mental Capacity Professional in certain cases. The arrangements must also not conflict with a valid decision of an attorney or court appointed deputy.
If these conditions are met, the responsible body may give authorisation but is not under a duty to do so. The intention is to make it clear that the process does not end with compliance with the procedural requirements and to enable the responsible body to explore other options.
In cases of fluctuating capacity, the LPS will allow the authorisation to remain in place so long as the regaining of capacity will be short lived.
Effect of authorisation
If authorisation is granted, it will give statutory authority to the body delivering the care and treatment, e.g. a care home or hospital, to deprive a person of their liberty by detaining them. It will also give a statutory defence to members of staff who actually carry out the acts that give rise to the deprivation of liberty.
What happens thereafter?
Authorisation can initially last for up to 12 months and can be renewed for up to another 12 months, and then for up to three years. Authorisations must be kept under review and there are other measures including the appointment of an independent advocate, rights of legal challenge, monitoring and reporting requirements, and the ability to bring civil proceedings for unlawful deprivation of liberty.
It will be some time before the draft Bill goes through Parliament. There is bound to be a great deal of pre-legislative scrutiny and discussions about funding. We will be watching developments closely and providing further updates.
The report is 259 pages long and can be found here.
Compulsory DoLS Inquests scrapped
There has been a further development regarding inquests, which affects care providers. At present, the law requires a Coroner to conduct an inquest into every death where the deceased was subject to a DoLS authorisation because that person is considered to have died in “state detention” under Section 48(2) of the Coroners and Justice Act 2009. This has created unnecessary work for Coroners, adds to the distress for families and the burden on care providers and local authorities, especially when statistics show that 94% of the deaths arose from natural causes.
The meaning of “state detention” has been amended through the Policing and Crime Act 2017 to expressly exclude those who are subject to DoLS. Any such death that occurs on or after 3 April 2017 will no longer be subjected to a compulsory inquest, unless there is any reasonable suspicion that the death was unnatural or the cause of death is unknown.
This is welcome news for care providers.
Health & Social Care Team
Bonita is a Partner in our Health and Social Care Team.
She has a special interest in the protection of the elderly and vulnerable from financial abuse. She regularly represents deputies/attorneys, care providers, IMCAs and service users and their families in all types of Court of Protection applications.
If you have any queries about Liberty Protection Safeguards, or any other legal issues, please contact us on 0117 321 5972.