Hope Davis-McCallion explains the Law Commission’s ’urgent’ safeguard suggestions
In March, the Law Commission delivered its final recommendations on reforming the Deprivation of Liberty Safeguards system. This came after the Commission concluded that the current system was “in crisis” and needed to be replaced “as a matter of pressing urgency”. The name being suggested for the reformed system is “Liberty Protection Safeguards”.
Understandably, healthcare providers will want to know what is being proposed and whether they need to do anything. The Commission have proposed several changes to the current DoLs system, including where the safeguards apply to, who they apply to and the specific arrangements to which they apply. Unless and until these recommendations become law, providers must continue to abide by the current DoLs system.
The Commission has proposed a list of conditions that must be met in order for the responsible body to authorise arrangements that would give rise to a deprivation of liberty
The idea is that the planned “Liberty Protection Safeguards” would make the scheme more flexible as the safeguards will apply to all settings, including hospitals, care homes, supported living arrangements and people’s own homes.
The age range of LPS will extend to include young people aged 16 to 17. The current system of “supervisory bodies” and “managing authorities” would be replaced by the body responsible for the patient authorising the deprivation. These would be the NHS trusts, clinical commissioning groups and local authorities.
The specific arrangements that could be authorised under the new scheme are:
1. That a person is to reside in one or more particular places.
2. That a person is to receive care or treatment at one or more particular places.
3. The means by, and the manner in which, a person can be transported to a particular place or between particular places.
The Commission has proposed a list of conditions that must be met in order for the responsible body to authorise arrangements which would give rise to a deprivation of liberty. These include:
1. The person lacks capacity to consent to the arrangements;
2. They are of “unsound mind”
3. The arrangements are “necessary and proportionate”
4. The required consultation has taken place
5. An independent review has been carried out
6. In certain cases, approval has been obtained from an Approved Mental Capacity Professional.
Under the proposed scheme, an authorisation can have effect immediately, or up to 28 days later. It can last for a period of up to 12 months and can be renewed for a second period of up to 12 months and, thereafter, for periods of up to three years.
There will be additional protection for those objecting to their care plans. This will be in the form of a duty to refer to an Approved Mental Capacity Practitioner if it appears that the person is objecting to the plans for their residence/care or the arrangements are wholly/mainly for the protection of others. The Approved Mental Capacity Practitioner will replace the existing best interests assessor.
There will be statutory authority to deprive someone of their liberty temporarily in urgent/emergency situations, but only to enable life sustaining treatment or to prevent a serious deterioration in the person’s condition.
The Commission has proposed introducing the following safeguards:
- The right to challenge the deprivation of liberty legally.
- The appointment of an Independent Mental Capacity Advocate or appropriate person to represent and support the person if the responsible body ”proposes to authorise arrangements” and throughout the period of authorisation.
- The responsible body keeps the authorisation under review with a duty to hold reviews at planned times and due to changes in circumstances.
It is imperative that procedures such as DoLs are kept under review, especially when it has such a fundamental impact on individual’s rights. There are major advantages to the proposed scheme, such as the increased flexibility of the responsible body to manage a patient’s future placement, and that an authorisation could apply to a different setting if a patient has to move from one placement to another.
The next step will be for the government to respond to the proposals and come to a decision about whether they accept them or produce an amended version of the suggested system
At a time of increasing demands and limited budgets, the NHS will want assurances as to what additional funding may be available to support those proposals if they are adopted. But now that the baton has been firmly passed to Parliament to respond, it remains to be seen what the outcome will be. It is worth noting that nothing will change any time soon.
The next step will be for the government to respond to the proposals and come to a decision about whether they accept them or produce an amended version of the suggested system. This could take up to 12 months. At this stage, Parliament need to be informed not only by legal expertise but also by mental health expertise and experience of what is going on across the NHS.
Ridouts are highly experienced in advising providers on meeting the requirements of DoLs. Please feel free to contact us if you have any questions in relation to DoLS.