An overview of the new Liberty Protection Safeguards scheme (“LPS”), set to come in to force in October 2020.

At present the process of decision making for adults who lack mental capacity to make their own decisions about important subjects such as their welfare, residence and finances, is governed by the Deprivation of Liberty Safeguards (DoLS), a set of rules contained within Schedule A1 of the Mental Capacity Act 2005. However, now that the Mental Capacity (Amendment) Act 2019 has received Royal Assent and become law, this is all set to change.

The DoLS are due to be replaced by the Liberty Protection Safeguards (LPS) from 1st October 2020, at which point no new standard or urgent authorisations under the DoLS will be made. Existing authorisations will be permitted to continue until their expiry date, when a new authorisation under the LPS will then be required.

What are the Deprivation of Liberty Safeguards (DoLS)?

The DoLS are the rules which must be followed when an adult without mental capacity to consent to the arrangements for their care and residence (referred to as ‘P’) is deprived of their liberty. P is considered to be deprived of their liberty if they meet the following requirements:

  • They are under continuous supervision and control; and
  • They are not free to leave.

This is a test implemented by the Supreme Court in a case known as Cheshire West and is referred to as the “Acid Test”. If both elements of this test are met and P lacks capacity to consent to being deprived of their liberty, the relevant local authority, in their role as Supervisory Body, may make a standard authorisation in order to legally detain P in a care home or hospital.

When a standard authorisation is in force in relation to P a representative is appointed, called the Relevant Person’s Representative, whose role is to visit P regularly and consider whether they are objecting to their deprivation of liberty and whether it is in their best interests to make an application to the Court of Protection to challenge the standard authorisation. This person can be a family member, friend, or a professional advocate.

In circumstances where P is deprived of their liberty in a location other than a care home or hospital, no standard authorisation can be made by the Supervisory Body, who must instead make an application themselves to the Court of Protection in order to authorise P’s deprivation of liberty.

How are the LPS different from the DoLS?

There are three major differences between the DoLS and LPS regimes.

  1. The LPS can be used to allow the Responsible Body to authorise a deprivation of liberty in any setting. This means that the Court of Protection will no longer hear cases requesting authorisation for deprivations of liberty in the community, as these will now be able to be authorised by the Responsible Body in the same manner as a deprivation of liberty within a hospital or care home environment.
  2. Authorisations made under the Liberty Protection Safeguards Scheme will be portable and variable. Unlike standard authorisations under the DoLS, which are location specific and expire if P moves to a new placement, the LPS will allow the Responsible Body to vary an authorisation if it is reasonable to do so. This will mean that, for example, an authorisation can be granted for P to be deprived of their liberty in Care Home X, but P can then be moved to Care Home Y if the responsible body thinks it is reasonable to do so and no new authorisation will be required.
  3. The LPS will apply to 16 and 17 year olds, unlike the DoLS, which only apply to those aged 18 years and over. This will bring the law on deprivation of liberty into line with the rest of the Mental Capacity Act 2005, which (with some limited exceptions) applies to those aged 16 years and over.

When can a Responsible Body make an authorisation under the LPS?

A Responsible Body may only authorise arrangements that give rise to a deprivation of liberty when P lacks capacity to consent to the arrangements, P has a mental disorder with the meaning of section 1(2) of the Mental Health Act 1983, and the arrangements are both necessary to prevent harm to P and proportionate to the risk and seriousness of harm occurring.

When considering P’s capacity and whether they have a relevant mental disorder, the Responsible Body is permitted to rely on previous assessments if it is reasonable to do so. They are required to consult with a number of people before authorising the arrangements, unless they consider that it is not appropriate or practicable to do so. These include P, anybody named by P as somebody they would like to be consulted, anybody engaged in caring for P or interested in their welfare, any donee of a lasting or enduring power of attorney, any deputy appointed by the Court of Protection, any appropriate person and any independent mental capacity advocate (IMCA).

Before authorising the arrangements, the Responsible Body must also complete a pre-authorisation review, which must be carried out by a person who is not involved in the day-to-day care or treatment of P and does not have a prescribed connection with the care home in which P lives. This person can be either an approved mental capacity professional (AMCP) or another health or care professional which will be set out in the statutory guidance when it is available.

It is also permitted, in the case of arrangements proposed to take place in a care home and where P is aged 18 years or older, for the Responsible Body to decide that the care home manager should arrange the necessary assessments and evidence to present to the Responsible Body, which will then decide whether to make an authorisation on the basis of the information submitted.

What is an AMCP?

The role of AMCP – approved mental capacity professional – is a new role which is similar to that of a best interests assessor under the DoLS, but which expands upon that role. The government have indicated that all professionals who are currently eligible to be best interests assessors will be eligible to be AMCPs.

Local Authorities will be responsible for approving individuals AMCPs and ensuring that there are enough approved AMCPs for their local area. The government is expected to prescribe, by way of regulation-making powers, the criteria for approval of AMCPs and bodies that may approve their training, however these regulations are not yet in place.

The LPS requires that a pre-authorisation review must be done by an AMCP in the following circumstances:

  • When it is reasonable to believe that P does not wish to live or receive care or treatment at a particular place;
  • The arrangements proposed involve P receiving care or treatment mainly in an independent hospital; or
  • The Responsible Body refers the case to an AMCP who accepts the referral.

What is an IMCA?

An IMCA – independent mental capacity advocate – is an advocate who has been specially trained to support people who lack capacity to make important decisions for themselves, such as where they should live or whether they should receive medical treatment.

Under the LPS a Responsible Body has a duty to take reasonable steps to appoint an IMCA if P has capacity to consent to an IMCA being appointed and requests one. They must also do so if P lacks capacity to consent to the appointment of an IMCA, unless the responsible body is satisfied that it would not be in P’s best interests to be supported by an IMCA.

However, this duty does not apply when there is another appropriate person to support P, such as a family member or friend. An appropriate person must consent to being appointed to the role and it cannot be a professional, or somebody who is paid to care for or provide treatment to P. P must consent to the appointment of the appropriate person if they have capacity to do so, or if they lack capacity to consent the Responsible Body must be satisfied that it is in P’s best interests for the appropriate person to be appointed.

How long does an authorisation last?

Under the DoLS a standard authorisation cannot last more than one year and it cannot be renewed. At the expiry of a standard authorisation a whole new application and assessment process must take place before a new standard authorisation can be granted.

Under the Liberty Protection Safeguards Scheme an authorisation can be granted for an initial period of up to 12 months, after which it can be renewed for a second period of up to 12 months, and then for periods of up to three years at a time.

In order to renew an authorisation the Responsible Body must carry out consultations before renewal and be satisfied that the conditions for the authorisation are still met and that it is unlikely that there will be a significant change in P’s condition during the renewal period which may affect whether they continue to be met.

Authorisations must be reviewed regularly, and in particular:

  • before an authorisation is varied (or as soon as practicable after variation);
  • if a reasonable request is made by a person who has an interest in the arrangements;
  • if P becomes subject to mental health arrangements (as the LPS cannot be used for psychiatric treatment of a P who is detained under the Mental Health Act); or
  • if there has been a significant change in P’s condition or circumstances.

There is no formal process by which authorisations will be terminated under the LPS. An authorisation ceases if the Responsible Body believes or ought reasonably to suspect that the conditions are no longer met.

How can an authorisation be challenged?

In the same manner as an application can be made under s.21A of the Mental Capacity Act 2005 to challenge a standard authorisation under the DoLS, the LPS provides for P, their IMCA or their appropriate person to apply to the court to challenge an authorisation.

When such an application is made the Court of Protection can consider whether the Liberty Protection Safeguards Scheme apply to the arrangements in question, whether the conditions for authorisation are met, the duration of the authorisation and what the authorisation relates to. The Court of Protection can then vary or terminate the authorisation, or can direct the Responsible Body to vary it.

Further information about the new Liberty Protection Safeguards Scheme including preparation for implementation and details on the associated Code of Practice can be found here

By Lindsay Da Re

Solicitor – Human Rights & Court of Protection