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Introducing Liberty Protection Safeguards

Published: 08/10/2019

Author: Alex Ruck Keene

The Liberty Protection Safeguards will soon replace the Deprivation of Liberty Safeguards, a set of checks that aims to make sure that any care that restricts a person’s liberty is both appropriate and in their best interests.

The UK has obligations under the European Convention on Human Rights to protect people who are deprived of their liberty, and this is why the Deprivation of Liberty Safeguards system was put into place.

The Mental Capacity (Amendment) Act 2019 (MC(A)A) received Royal Assent on 16 May. When comes into force it will sweep away the (mostly unloved) Deprivation of Liberty Safeguards (‘DoLS’) regime and replace it with the Liberty Protection Safeguards (‘LPS’). The expected implementation date for the Act is 1 October 2020.

The background to the MC(A)A is well-known, but in short represents the response, primarily, to the widening by the Supreme Court in Cheshire West (see P v Cheshire West & Chester Council; P & Q v Surrey County Council [2014]) in March 2014 of the conventionally understood scope of the meaning of deprivation of liberty. This has meant both substantial increases in the numbers of applications in settings to which DoLS applies (i.e. care homes and hospitals), as well as an understanding that there are many in settings to which DoLS do not apply who need authorisation of their circumstances.

DoLS are currently only (in general) achievable by an application to the Court of Protection, who make decisions on financial or welfare matters for those who lack mental capacity and can’t make decisions at the time they need to be made. There were other drivers, including the criticism of the legislation itself by the House of Lords in its post-legislative scrutiny report upon the MCA 2005. The Law Commission took it upon itself to look more broadly than simply DoLS when asked to undertake the project to reform the law in this area.

When the LPS comes into force, it will introduce a new administrative scheme for the authorisation of arrangements enabling care or treatment of a person who lacks capacity to consent to the arrangements, which give rise to a deprivation of that person’s liberty. The scheme will apply in relation to all those aged 16 and above, in any setting (except in-patient mental health treatment to which the person objects), bringing new challenges for people working with this age group.

The LPS, unlike DoLS, places responsibilities for coordinating and considering assessments not just on local authorities, but on NHS hospitals, Clinical Commissioning Groups and Local Health Boards (alongside local authorities). This all depends upon how and where the arrangements giving rise to the deprivation of the person’s liberty are being carried out. Before the LPS comes into force, therefore, a wide range of bodies will need to understand their obligations.

The Research in Practice Liberty Protection Safeguards: Webinar introduces those obligations and explains what different bodies can start to do now to prepare for implementation. It is designed for people working in adult social care, as well as those working with young people aged 16 and 17.

Alexander Ruck Keene

Alex Ruck Keene

Alex Ruck Keene is a practising barrister, specialising in mental capacity law.