Implementation of the liberty protection safeguards

The consultation period for changes to the Mental Capacity Act (MCA) 2005 Code of Practice and implementation of the Liberty Protection Safeguards (LPS) has finally opened. It will last for 16 weeks and closes on the 7 July 2022. These reforms have been eagerly anticipated and are long overdue, whether they in fact serve to reduce the significant waiting times we have seen in recent years for assessments and/or the involvement of the court in protracted and lengthy Deprivation of Liberty Safeguards (DoLS) related challenges remains to be seen. The LPS were due to be implemented in October 2020 but were postponed until April 2022 — there have been further delays and disappointingly a new date has not been fixed.

The MCA 2005 came into force in 2007 and is supported by the Code of Practice which sets out guidance on how the MCA should be implemented in practice. The DoLS were an amendment to the MCA 2005. The legislation was thought to signify a major change for individuals who lacked capacity, finally giving them statutory rights and placing them at the centre of the decision-making process. In reality, the MCA and DoLS have fallen short in offering the type of safeguards that were envisaged, accountable in significant part to a lack of resource hampering their effective administration. In March 2014, the Supreme Court judgment in Cheshire West widened the definition of deprivation of liberty, setting out the ‘acid test’, which stated it is when the person lacks capacity to consent to the arrangements of their care, is under continuous supervision and control, and is not free to leave their care. This definition further highlighted the need for urgent change as the Code of Practice appeared outdated and the DoLS, due to a significant increase in demand, were unable to offer the necessary safeguarding protection to individuals.

The LPS were introduced by the Mental Capacity (Amendment) Act 2019 and they will replace the DoLS. The LPS are designed to ensure the individual is at the centre of the decision-making process, offer a more simplified framework that can operate in all settings, and improve the delivery of care and treatment to those lacking mental capacity.

Some of the key changes are as follows:

• DoLS apply to those aged 18 or over but the LPS will extend to 16- and 17-year-olds and ensure they receive the appropriate safeguards without the need for authorisation from the Court of Protection. The professionals involved will require specific training on how the LPS will operate for this group and, whilst this may pose numerous challenges, it will ensure that the best interests of the young person are kept central to all decisions on their care and treatment.
• DoLS are not transferrable and apply to a specific institution, whereas the LPS will be applicable to the ‘arrangements’ (care and treatment) and cover all the settings a person may access, reflecting a deeper understanding of how and where an individual may want to live.
• There will be a designated Responsible Body (rather than the local authority for all DoLS), and so NHS Trusts will manage their inpatients, Clinical Commissioning Groups (CCGs) will arrange the process for those outside of hospital, and local authorities (LAs) (adult social care and children’s services directorates) will be responsible for those in care homes, supported accommodation, Shared Lives accommodation, their own homes, and independent hospitals. This, it is hoped, will reduce the administrative burden on the institutions involved. However, the extension of the DoLS regime to younger persons and a wider range of community settings may still serve to pose logistical problems for local authorities, noting that CCGs are likely to assume responsibilities for relatively modest numbers of persons receiving continuing healthcare, and hospital stays are often short, such that restrictions of liberty under the MCA are less likely to move into deprivation and more likely to be underpinned by the Mental Health Act or be captured by the Ferreira type of case, where the court ruled that those in ICU are not in state detention for the purpose of the DoLS. As with the inception of the original DoLS scheme in which CCGs and LAs had administrative responsibility, the scheme owing to administrative efficiency was consolidated and handled by the LA alone. Whether the same type of approach comes to emerge again remains to be seen.
• The LPS will be more streamlined and manageable, and ongoing evidence of a mental health condition does not need to be obtained for every authorisation (unless the circumstances change). This will ensure that a person with advanced stage dementia or someone with a significant learning disability does not need repeated assessments, which can be distressing, time-consuming and cause delays.
• The LPS will be quicker to implement as, in the majority of cases, only a pre-authorisation review to examine the required documentation will be required and the best interest assessor (BIA) will no longer need to visit the person, and this role will cease to exist. Instead, an Approved Mental Capacity Professional (AMCP) will be appointed to be involved in cases where the person does not want to live at the specified place or does not want the care or treatment to be provided at the place. They will also be involved if the individual being deprived of their liberty is in an independent hospital and not subject to the Mental Health Act or the responsible body has requested an AMCP to assist. Their duty will be to advocate for the individual and ensure their wishes and rights are considered and upheld.
• Authorisations under the LPS will last initially for one year maximum and one year for the first renewal, thereafter renewals can be for up to three years. When the LPS are finally in use, there will be some DoLS authorisations that are still valid and so the two systems will run in parallel with each other in the ‘transition year’.

The consultation period is vital to ensure that the LPS are implemented correctly and can be integrated into day-to-day health and social care planning as needed. Undoubtedly, changes to the current legislation are urgently required, but the process will take months to years and implementation seems unlikely before the end of 2023/early 2024. The consultation document is 60 pages long and asks 25 questions, with scope to explain answers and provide feedback. The Government anticipates that the responses will be numerous, complex and take considerable time to analyse. Successful implementation of the LPS will require extensive preparation, and a 35-page document entitled Liberty Protection Safeguards National Workforce and Training Strategy (England) was also published in March 2022. It provides advice on the required workforce planning, and the training and development that is available to local, regional and national employers. Public sectors and organisations need to undergo substantial change and the burden of this work should not be underestimated.