The Mental Capacity (Amendment) Act 2019 has received Royal Assent. That means that the new liberty protection safeguards (LPS) will replace the current deprivation of liberty safeguards (DoLs). The LPS are due to come in in 2020 although there might be a period when the two regimes overlap.
The LPS apply to people aged sixteen and over. You might recall that DoLs only applies to people aged eighteen or over.
The LPS has a wider application than DoLs, which applies to hospital and care homes. The LPS can be used for supported living arrangements, private and domestic settings, and also to organise arrangements for transporting people or arrangements in a day centre. The LPS can authorise arrangements for somebody who is being cared for in more than one place.
Responsible bodies can authorise the deprivation of liberty. There can only be one responsible body for an authorisation. For example, if the person is mainly in an NHS hospital, the authorisation will be dealt with by the hospital manager. If the arrangements are mainly carried out through NHS Continuing Care, the clinical commissioning group will be the responsible body. Other arrangements will be dealt with by the local authority.
An authorisation can be made if the person lacks capacity to consent to the arrangements and has a mental disorder within the meaning of Section 1(2) of the Mental Health Act 1983 and the arrangements are necessary to prevent harm to the person and proportionate in relation to the likelihood and seriousness of harm to the person. There is a consultation process and a pre-authorisation review by somebody who is not involved in the day to day care or treatment of the person or a connection with the care home if that is where the care is taking place. A new role of an approved mental capacity professional (AMCP) is introduced.
If the cared for person or others want to challenge the authorisation that will be dealt with by the Court of Protection.
It will be interesting to see how the LPS work on the ground. On the face of it, there are definite improvements. The reduction of the effective age to sixteen rather than eighteen should hopefully prevent some problems and the ability for authorisation to be given in a different setting will be very helpful. Somebody who lacks capacity to consent to their care arrangements may well be looked after in different places. They might be in a supported living house but spend a few days at a day centre. They might have challenging behaviour which means some sort of restriction on their liberty is felt to be needed while they are being transported to and from the day centre.
Perhaps the most significant development is that these safeguards can also apply in private settings. Since the SRK case the onus has been on deputies to identify which of their clients might be subject to a deprivation of liberty. The appropriate course of action is usually to refer the matter to the local authority. In practice many of these referrals have not resulted in action yet, particularly in cases where the situation does not seem to be contentious.
The pre-authorisation review and the independence of the person completing that are going to be key. Those aspects will be fleshed out by regulations.
This article gives the edited highlights of the LPS but please watch this space for more detail as the regulations come out.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.