The Health Minister has endorsed the Law Commission’s recommendations to replace the current Deprivation of Liberty Safeguards (DoLS) with the more robust Liberty Protection Safeguards (LPS). The new regime will provide greater legal safeguards and transparency for individuals who are deprived of their liberty because they lack the mental capacity to consent to necessary care/treatment.
The DoLS scheme provides that a person may deprive another of his liberty if such deprivation is authorised under the Mental Capacity Act 2005, described as a ‘gilded cage’ by Baroness Hale. It currently applies to persons over 18 detained in a hospital or care home for the purpose of care or treatment, in circumstances which amount to a deprivation of liberty.
The ‘acid test’ for the DoLS, established by The Supreme Court in P v Cheshire West and Chester Council , extended the ambit of those covered by it to include those confined for a benevolent or beneficent purpose. The floodgates opened and applications for authorisation increased tenfold, leading to criticism in in 2014 from the House of Lords that the regime was not “fit for purpose”.
In March 2017, a report from the Law Commission set out a number of recommendations that have been broadly agreed in the Government’s final response, which was published on 14 March 2018, although it is not known when Parliament will have the time to consider any legislation to implement the recommendations.
Under the LPS, it is intended that deprivation of liberty will have the same meaning as it does under Article 5(1) of the ECHR, which guarantees the right to liberty and security but permits the lawful detention of ‘‘persons of unsound mind’’.
The LPS will widen the scope of the safeguards to include persons over 16 and also those living in supported housing, shared housing, and private housing. Deprivation of liberty will only be authorised after at least two independent assessors have undertaken a number of tests, including a capacity assessment, a medical assessment confirming that the person is of ‘’unsound mind’’ and a ‘necessary and proportionate test’. Authorisation under LPS will be for up to 12 months, another 12 months thereafter and then for up to three years and measures for reviewing authorisations are to be maintained.
In authorising a deprivation of liberty, a ‘responsible body’, such as the hospital trust, will be required to take responsibility where the provision of healthcare requires someone to be deprived of their liberty – a system that is already working well in Wales – and to produce an authorisation record detailing the care plan and all the authorised arrangements. If arrangements are authorised, the responsible body will also be required to appoint an Independent Mental Capacity Advocate for the individual.
An Approved Mental Capacity Professional will be appointed to review a deprivation of liberty if there are any challenges/objections, which will provide an additional level of scrutiny to make the process more workable and proportionate.
The Government accepts that a decision must be decided about which judicial body should determine challenges to authorisations of deprivation of liberty and will consider the Law Commission’s recommendation that the Court of Protection should have jurisdiction to determine any question relating to arrangements that are authorised under the LPS, and that no permission should be required for any application made for such determination.
The Government will also consider how to ensure private care providers not meeting their duties are held to account and whether allowing civil proceedings against private care providers would be an effective way to improve accountability.
With regards to inquests, Section 48 of the Coroners and Justice Act 2009 will be amended to provide that a person is not in state detention if the compulsory detention arises as a result of arrangements which are authorised under the LPS.
The recommendations about fitting with the Mental Health Act are accepted, in principle, however, such recommendations will be considered in light of wider amendments to the Mental Health Act, including taking into account the past and present wishes and feelings, beliefs and values when making a best interests determination for a person subject to the LPS.
A regime centred around the individual should provide greater human rights protection to those lacking mental capacity. Service providers will need to be aware of the additional responsibilities as there are potentially serious civil, criminal, regulatory and reputational consequences for failing to abide by the scheme. Nonetheless, there will still be instances where there is a divergence of medical opinion or a dispute between the professional and the family as to the appropriate treatment.
Co-authored by Partner, Jane Lang and professional support lawyer, Aliyah Hussain