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The new DoLS: An introduction to the Liberty Protection Safeguards

The Law Commission has made a number of recommendations to the Government around changing Deprivation of Liberty Safeguards. What has been recommended and what does this mean for the sector? Stuart Marchant explores the Law Commission’s report on the subject.

In March, the Law Commission concluded its review of the Mental Capacity Act and Deprivation of Liberty Safeguards (DoLS) and published its final report, along with a draft Bill, introducing a new statutory scheme named the Liberty Protection Safeguards (LPS).

As many felt might happen, the Law Commission’s report recommends the repeal of the current DoLS. However, given the issues around the current system, most people want to know whether it would create a simpler process that is easier to work with. Also, would the new system ensure the person concerned is at the centre of all decision-making?

How might DoLS change?

The report proposes a number of key changes to DoLS and clarifications that would be covered by a new LPS. These include considerations around who the safeguards apply to, where they apply and any specific arrangements to which they may apply.

Regarding who they apply to, the Law Commission recommends extending the age range of LPS to include young people aged 16 to 17. The Law Commission is also seeking to cure one of the procedural gaps created by the Supreme Court in the Cheshire West case by recommending that LPS would also apply to community settings.

Added to that, the report also recommends that, ‘The Liberty Protection Safeguards apply to arrangements which are proposed or already in place to enable the care or treatment of a person, and which would give rise to a deprivation of that person’s liberty.’

The specific arrangements that may be authorised under the new process 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. About the means by, and the manner in which, a person can be transported to a particular place or between particular places.

To explain this more, the Law Commission says, ‘A DoLS authorisation simply authorises a “deprivation of liberty”. By contrast, an authorisation under the LPS would authorise particular arrangements for a person’s care or treatment insofar as the arrangements give rise to a deprivation of liberty.’ It clarifies to say, ‘This focuses attention at the authorisation stage not simply on the binary question of whether a person should be deprived of their liberty or not, but on the question of the ways in which a person may justifiably be deprived of liberty.’

For example, ‘An authorisation under the LPS could cover deprivation of liberty in any setting and in more than one setting so as to take account of, for example, planned admissions to hospitals and respite care, as well as arrangements for the person’s travel between venues.’

In the case of urgent authorisations, the LPS says that it, ‘Would replace urgent authorisations with a statutory authority to deprive someone of liberty temporarily in truly urgent situations and in sudden emergencies, but only to enable life-sustaining treatment or to prevent a serious deterioration in the person’s condition.’ Beyond that, deprivation of liberty cannot be imposed on someone until arrangements have been authorised.

The term ‘arrangements’ has been kept ‘intentionally broad’ so it could cover arrangements that have previously been an area of uncertainty for providers.

Changes to the Mental Capacity Act 2005

As part of the Law Commission’s report, it is proposed that the LPS would operate within an amended framework of the Mental Capacity Act 2005 (MCA). The proposed reforms would be to improve decision-making across the MCA and include:

  • All decision-makers would be required to consider a person’s ascertained wishes and feelings when a best interests decision is taken.
  • Providers will need to ensure that there is an important formal written record of each decision-making process. The Law Commission says that the record must confirm that, ‘A formal capacity assessment has been undertaken and rights to advocacy have been implemented. This applies to cases that cover, ‘Decisions to move a person into particular accommodation, to restrict their contact with others or to administer certain types of medical treatment to them.’

The Approved Mental Capacity Professional

The report also recommends replacing the existing best interests assessor with the expanded role of Approved Mental Capacity Professional. Their role is to determine whether or not to approve the arrangements and they must meet with the person and consult with other key individuals to do so. They must not be involved in the day-to-day care or treatment of the person.

The LPS would require a referral to be made to an Approved Mental Capacity Professional if:

  • it is reasonable to believe that the person does not wish to reside or receive care or treatment at a particular place or accommodation; or
  • the arrangements are for the protection of other people.

The written approval of the Approved Mental Capacity Professional would enable the authorisation of arrangements by the ‘responsible body’.

Who would authorise LPS arrangements?

The LPS sets out three criteria for identifying the responsible body for authorising arrangements in any case. It states that:

  • The responsible local authority in most cases will be the authority that is meeting the person’s needs or in whose area the person is ordinarily resident.
  • If the arrangements are, or are proposed to be, carried out primarily in a hospital, the responsible body is the hospital manager.
  • If the arrangements or proposed arrangements are being carried out primarily through NHS Continuing Health Care, the responsible body is the relevant clinical commissioning group in England or local health board in Wales.

What are the conditions for an LPS authorisation?

The LPS sets out the following conditions, which must be met in order for the responsible body to authorise arrangements:

  • The person lacks capacity to consent to the arrangements which would give rise to a deprivation of the person’s liberty.
  • A medical assessment has confirmed that the person is of unsound mind within the meaning of Article 5(4)(1)(e) of the ECHR.
  • The arrangements are necessary and proportionate by having regard to the likelihood of harm to the person and/or other individuals if the arrangements were not in place, and the seriousness of that harm.
  • The required consultation has taken place (for instance, with friends and family members).
  • An independent review has been taken out.
  • The authorisation would not conflict with a valid decision of a donee or a deputy as to where the person should reside or receive care or treatment.

The LPS authorisation itself

Under the proposals, an authorisation can have effect immediately, or up to 28 days later. It can last for an initial 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.

As mentioned under the changes to MCA, the responsible body must produce an ‘authorisation record’ which must include matters such as details of the arrangements authorised.

The Law Commission is clear, however, that, ‘An authorisation does not provide statutory authority to deprive a person of their liberty; instead, a new section 4AA of the Mental Capacity Act would simply provide a defence to civil or criminal liability in respect of acts done pursuant to an authorisation.’

What safeguards will be introduced?

The LPS recommends the introduction of a number of safeguards, including:

  • The responsible body keeps the authorisation under review with a duty to hold reviews at planned times and due to changes in circumstances.
  • 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 the authorisation.
  • The right to challenge the deprivation of liberty legally.

Guidance for providers

The LPS system proposed by the Law Commission encourages best practice, having learned from DoLS and the Courts, so providers would be well-placed if they started to implement some aspects of the proposed system now, including:

  • Documenting the person’s wishes and feelings in best interests decisions and making judgements which reflect these.
  • Planning care interventions and any consequent deprivation of liberty that may occur and documenting issues in care plans that are discussed with individuals, their families and other professionals.
  • Identifying the kind of arrangements that may require authorisation in future so that you are well-placed to respond to changes – if nothing else, this will improve a thinking culture around issues that affect individuals in your care.

Next steps for deprivation of liberty

Although the Law Commission has produced these recommendations and a draft Bill, it doesn’t meant change will happen any time soon. We now have to wait for the Government to respond to these proposals and decide whether to accept some or all of the changes or whether to introduce an amended version of the system. In any event, providers would be advised to start considering some of the proposals as outlined in the guidance above. CMM

In other related news…

In other related news, coroners will no longer have a duty to undertake an inquest into the death of every person who was subject to an authorisation under the Deprivation of Liberty Safeguards (DoLS) under the Mental Capacity Act 2005.

This follows the Policing and Crime Act 2017 amending the definition of ‘state detention’ in section 48 of the Coroners and Justice Act 2009 (CJA). The amendment removes those lawfully deprived of their liberty, by the Deprivation of Liberty Safeguards or by court order from the Court of Protection, from falling within the meaning of ‘state detention’ in the CJA.

To accompany the change, which came into force on 3rd April, the Chief Coroner issued new guidance. This guidance makes it clear that where a death occurs on or after 3rd April 2017 any person subject to a Deprivation of Liberty is no longer ‘in state detention’ for the purposes of the CJA.

Such a death should be treated like any other death outside the context of state detention. As such, it only needs to be reported to the coroner if one or more of the other requisite conditions are met. However, the guidance also makes clear that where there is a concern about the death, such as a concern about care or treatment before death, or where the medical cause of death is uncertain, the coroner will investigate thoroughly in the usual way. 

Stuart Marchant is Partner at Bevan Brittan LLP. Email: Twitter: @BevanBrittanLLP

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