Liberty Protection Safeguards: Why, When & How
The purpose behind Liberty Protection Safeguards (LPS) is to create a more streamlined, efficient, and more effective system for those vulnerable persons whose liberty is being deprived. LPS were introduced by the Mental Capacity Amendment Act 2019 (MC(A)A 2019) and are expected to replace the current Deprivation of Liberty Safeguards (DoLS) regime.
A deprivation of liberty occurs when a person is under continuous supervision and control and is not free to leave, and that person lacks capacity to consent to these arrangements. A deprivation of liberty in these circumstances will only be lawful under the Mental Capacity Act 2005 (MCA 2005) if it is authorised. The current DoLS regime is one way of authorising a deprivation, with other means being an order from the Court of Protection or where necessity dictates that life-sustaining treatment is required pending authorisation.
Why the need for change?
The DoLS regime is viewed by many as being overly technical and legalised, bureaucratic, and of limited scope.
The application process has been criticised as focussing too greatly on deprivation, rather than protection, and not placing enough focus on individual patients' rights.
DoLS only applies to those aged 18 and over, meaning that currently a deprivation of liberty for those aged 16 and 17 will require an application to the Court of Protection, which can be a lengthy process. Furthermore, DoLS applies only to the settings of care homes and hospitals and therefore does not cover those that are receiving care in their own home, or assisted living facilities, for example. Again, meaning that deprivations in these scenarios require an application to the Court of Protection.
Perhaps most critically, however, are issues arising from the sheer volume of DoLS applications. The Cheshire West case, as handed down in 2014, clarified amongst other things that the test for DoLS would apply regardless of whether the individual was objecting to the placement or not. This led to a significant increase in applications and, despite best efforts, managing authorities responsible for reviewing and authorising applications simply can't keep up. Severe delays in responses mean that individuals are being deprived of their liberty, unlawfully, in some cases up to some five months before a decision is reached.
The numerous issues and growing dissatisfaction with the DoLS regime ultimately culminated with the Law Commission publishing a 2017 report recommending a total overhaul of the scheme.
When is LPS coming into force?
The question on everyone's mind is: when will those changes found within the MC(A)A 2019 be implemented and when is LPS coming into force? Those that practice in the sector will no doubt be aware that there have been numerous delays to the implementation of the LPS following the initial announcements back in 2020.
Unfortunately, there is still no indication on when LPS may be in force, and there is now growing concern that it may not happen at all.
On 5 April 2023, the Government announced that implementation of LPS will be delayed "beyond the life of this parliament". The next General Election is expected in late 2024 (although, may of course occur earlier), meaning that not only must we wait until that election has taken place, but it will also now be for the next Government to decide if it is to be implemented or not.
How will this announcement affect me?
Many care providers have already begun preparing for LPS and may now feel that hard work will go to waste. That is not necessarily the case. Whilst LPS may not yet be in force, and cannot be applied, the person-focused mindset and core principles of necessity and proportionality that underpins the LPS can aide greatly in best interests' decision making under DoLS.
As we wait for further updates on when, or indeed if, LPS is to be implemented, the current DoLS regime remains in place, and you may consider this a good time to take stock and ensure you are confident in the MCA 2005.
Our team of litigation experts regularly advises on a variety of contentious capacity issues, assisting both individuals and care providers. If you would like any advice on the implementation of LPS or the current DoLS regime or MCA 2005, please get in touch.