Liberty Protection Safeguards in limbo

The Government has confirmed its decision to delay the introduction of the Liberty Protection Safeguards (LPS) beyond the lifetime of the current Parliament. This means that if the LPS reforms are progressed, it will not happen until after the next general election and probably not until some years after that in view of the time required for consideration of responses to the consultation which took place in 2022 and preparation time for implementation.

The announcement by the DHSC in its LPS Newsletter to LPS stakeholders came on 5 April 2023 after publication of the Government’s plan for reform of adult social care “Next steps to put People at the Heart of Care” which sets out the “critical priorities” on which the Government intends to now focus its efforts and which do not include LPS at this stage.

The Mental Capacity (Amendment) Act 2019 received Royal Assent on 16 May 2019. The purpose of the Act is to abolish the Deprivation of Liberty Safeguards (DoLS) and to replace them with a new system, the Liberty Protection Safeguards (LPS). This system will apply to England and Wales and is intended to provide a more efficient system of protection of fundamental rights under the European Convention of Human Rights (‘ECHR’) and particularly Article 5 – the right to liberty. In contrast to DoLS, LPS will apply to those aged 16 years old upwards and applies to a wider range of settings where a person’s care is arranged, encouraging a more comprehensive planning approach to care and treatment. The safeguards were originally due to be implemented in October 2020, then delayed to April 2022 and last year further deferred to an unspecified date.

In 2022, the DHSC and Ministry of Justice consulted on a draft revised Mental Capacity Act Code of Practice and Regulations proposing how the LPS should be implemented. The consultation closed in July 20022 and the departments are yet to respond. If and when the LPS does come into force, it is intended that there will be one year of transition where the DoLS and LPS systems will run alongside each other to allow time for all of the existing DoLS (both Court and Standard Authorisations) to be transferred over to LPS. There will also be training required for the role of Approved Mental Capacity Professional (‘AMCP’) which is taking over the role of the Best Interests Assessor (‘BIA’).

A great deal of time and effort has been expended in the reviews of policy and preparations for the introduction of LPS. It is bitterly disappointing that the reforms have now stalled. Whichever political party wins the election, it looks like we will all be dealing with DoLS for some time to come. It is important therefore that knowledge of DoLS is up to date and the circumstances in which court authorisation for deprivations of liberty is sought is understood. The delays in the DoLS processes are a source of frustration and concern and health and social care professionals must take steps to ensure that they continue to safeguard the rights of individuals deprived of their liberty despite the limitations of the current system.

Our specialist mental health solicitors advise on all aspects of mental capacity law and safeguarding matters including Court of Protection proceedings.