Will The Liberty Protection Safeguards (LPS) Scheme Replace DoLS?


The Law Of... Deprivation of Liberty Safeguards

After finding a range of adverse issues with the existing deprivation of liberty safeguards (DoLS) scheme, the Government is now looking at introducing a new system for those who lack mental capacity: Liberty Protection Saefguards (LPS).

Angela Jackman, Partner in Education and Community Care, investigates what changes could be made and how this will impact the most vulnerable.

Concerns With The Existing Scheme?

The deprivation of liberty safeguards scheme (DoLS), which authorises the compulsory residence of individuals in care homes and hospitals, has received significant  criticism over recent years. 

When it was first introduced in 2007, many were reassured by the fact that the supervisory body, normally the relevant local authority, was required to carry out 6 separate assessments to establish that the criteria were met for issuing a standard authorisation. This authorisation requires an individual to reside either in a specified care home or hospital to receive care and treatment. 

Many other positive provisions were introduced as part of the scheme, including the following:

  • The local authority has to appoint a responsible person’s representative (RPR) to advise and represent the patient (P) who is detained
  • Non-means-tested public funding was introduced for individuals and their RPRs seeking to challenge  standard authorisation by bringing proceedings to the Court of Protection

Fast forward 7 years, and for a number of reasons there are concerns that the DoLS scheme is deficient in a number of respects.

This is partly due to the significant increase in the number of applications to the Court of Protection following the landmark 2014 Supreme Court decision in Cheshire West, which requires local authorities to make applications to the court for the detention of individuals in a wider range of accommodation including supported living.

"Not Fit For Purpose"

After investigating the scheme, the House of Lords Select Committee published a report in March 2014, which concluded that the DoLS scheme is "not fit for purpose" and should be replaced by a brand new system.

The Law Commission, which was investigating the scheme, published a report on 13th March 2017 with a draft Bill. In line with the House of Lords Select Committee's proposal, it recommends that a completely new scheme should be put in place: the Liberty Protection Safeguards (LPS).

 The Commission is concerned that the DoLS regime operates largely as an ineffective "rubber-stamping" process, which simply confirms convenient placement decisions often chosen prematurely by local authorities. 

The Commission suggests the framework should be replaced by a system that is much more proactive and requires the local authority from the very outset to consider not just residence but also the treatment and the overall arrangements required to meet the holistic needs of the patient.

It would therefore be for either the local authority or, in the case of a hospital detention the NHS body, to fully consider a range of options for the patient before making a decision. The reason behind this is that it would allow the decision maker to take various options into account that might still be available at an earlier stage in comparison to being limited at a later stage after the patient is detained. 

An example would be where a patient has tenancy of a property but would lose the option of returning to it as a result of a premature residential placement.

What Changes Have Been Recommended?

The recommendations that have been made include:

  1. Local authorities will no longer be responsible for issuing authorisations in respect of hospital detentions as these should now fall to the responsibility of the relevant NHS body
  2. Applications for standard authorisations will no longer be made by the care home or hospital, with the exception of situations where there is a private provider. They will still be required to apply to the local authority or face potential liability under a new civil claim for damages
  3. The new scheme will be more flexible than the current scheme as the authorisations will not be restricted to one placement only, but can cover the patient being placed in a number of different placements and types of settings
  4. The 6 separate assessments currently used are to be replaced by a streamlined assessment process, which will include: 
    • A capacity assessment
    • A medical assessment
    • A third assessment, which involves the responsible body arranging the necessary and proportionate assessment

    The central role of a best interests assessor would no longer exist

  5. The responsible body would then carry out an internal review of the proposed arrangements. Where the patient objects to the arrangements or if detention is mainly for the protection of other individuals, the responsible body would have to refer its decision to an Approved Mental Capacity Professional for an arm's length and second assessment.

    If a decision is made by the Professional to uphold the arrangements that would deprive the patient of their liberty, the patient must still have access to remedies in recognition of the fundamental infringement of their article 5 and 8 rights. These safeguards would be a right to access advocacy, regular reviews of the arrangements, and ultimately a right to make an application to court

  6. LPS would also apply to young people aged 16 and over to ensure they can access the same safeguards

The basis of the proposals is to make the system less complicated and bureaucratic by replacing it with a more streamlined framework that really focusses on the patient's wishes, feelings, and holistic needs at the very beginning of the process.

The in-built system of review and potential consideration by an Approved Mental Capacity Professional aims to ensure that the patient's fundamental rights are protected.

Angela Comments:

"A major advantage of the proposed scheme is the increased flexibility of the responsible body to manage a patient’s future placement."

"The fact that an authorisation could apply to different settings if a patient has to move from one placement to another would be helpful, provided they continue to have ready access to an advocate and representation."

"In addition to proposing the new framework for detaining individuals, the Law Commission is also suggesting that the Government makes broader amendments to the Mental Capacity Act 2005 to place greater emphasis on the need for decision makers to identify and give consideration to the wishes and feelings of individuals and to consult more with family."

"It is always important to keep procedures under review, especially those that have such a fundamental impact on individuals' rights. It is hoped that the aims of streamlining and simplifying the process by requiring the responsible body to make comprehensive, thoroughly researched decisions at the beginning of the process is not hindered by the on-going issue of a lack of resources for public bodies to meet their statutory duties."

"It remains to be seen how the Parliament responds, now the baton has been firmly passed to it."

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