Where care arrangements involve "continuous supervision and control" of a person, and they are not free to leave their care setting, they are said to be deprived of their liberty.
There are occasions where, due to disability, injury or condition, a person may lack the mental capacity to consent to these arrangements. Where this is the case, the person's Local Authority is empowered to authorise arrangements that deprive the person of their liberty. This will ensure the person continues to receive the care or treatment that is deemed to be in their best interests.
This authorisation is currently done through the Deprivation of Liberty Safeguards (DOLS). However, due to criticisms from the Law Commission that the DOLS are "overly technical and legalised" and are "not meaningful for disabled people and their families or carers", accompanied by an increase in referrals, DOLS are set to be replaced by the Liberty Protection Safeguards (LPS). Although the aims of DOLS and LPS are, at their core, very similar, it is hoped that the LPS will be a better fit for the greater volume of applications now being received regarding the care arrangements for those who lack capacity.
Similarities and differences between DOLS and LPS
It is the Government's intention that the LPS will create a simplified and accessible framework to ensure the authorisation for care plans operates effectively, whilst still placing the person who lacks capacity at the centre of decision-making and respecting their rights, wishes and feelings expressed. The LPS will, however, be more explicit about the requirement to put the person who lacks capacity at the fore and involve them in the process.
A key difference is that the LPS will also apply to 16-17 year olds, whereas DOLS only apply to persons over 18. Currently, court authorisation is required where measures are proposed to restrict the liberty of a child.
Under DOLS, the Local Authority have to authorise arrangements for a person who lacks capacity, whereas, under the LPS, measures can be approved by a "Responsible Body", which encompasses the NHS organisations, the Clinical Commissioning Group, and the Local Authority the person is under.
The test for whether a person is being deprived of their liberty under DOLS has been defined by court rulings as comprising of two questions:
1. Is the person subject to continuous supervision and control?
2. Is the person free to leave?
For a person to be deprived of their liberty the following conditions must be met; that the person is suffering from a recognised mental disorder, they do not have capacity to decide on the proposed arrangements for themselves, and that the proposed restrictions would be in the person's best interests.
Under the LPS, three assessments will be required for arrangements that restrict liberty to be authorised. Firstly, a capacity assessment to determine whether the person is able to make decisions for themselves about the arrangements is needed. Secondly, the person must be medically assessed to establish whether they have a mental disorder. Thirdly, the arrangements proposed will be examined to establish that they are necessary to prevent harm to the person and proportionate to the likelihood and seriousness of the harm (the necessary and proportionate assessment).
Should the person, or their family or carers, wish to challenge a plan of care made on the basis that it is excessive or otherwise not suitable for the person, they are able to do this through the Court of Protection under the DOLS and LPS.
When will this be?
Introduced by the Mental Capacity (Amendment) Act 2019, the LPS was originally intended to come into force in April 2022. The Department of Health and Social Care confirmed that this date could not be met and the implementation of the LPS would have to be delayed. At present, no new date for the LPS coming into force has been set. The Department of Health and Social Care have commented that the "LPS are a complicated set of reforms" and that the government will need time to carefully consider consultations "before making final decisions about the design of the LPS and plans for implementation".
We at Lanyon Bowdler understand the challenges involved with looking after a loved one who lacks capacity. If you have concerns about a person in your life who lacks, or may lack, capacity please contact our knowledgeable and friendly Court of Protection Team to discuss the issues you are facing and for advice on a way forward.
Further reading:
When a person lacks capacity and best interests decisions: https://www.lblaw.co.uk/blog/what-is-a-best-interests-decision-and-how-are-they-made-for-people-who-lack-capacity
Liberty protection safeguards – what they are: https://www.gov.uk/government/publications/liberty-protection-safeguards-factsheets/liberty-protection-safeguards-what-they-are
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.
