A deprivation of one's liberty can arise if an individual is under continuous supervision and control, not free to leave their immediate environment and lacks capacity to consent to these arrangements. In such circumstances, a Local Authority (social services) has a duty to ensure that any arrangement resulting in a deprivation is conducted in accordance with the relevant safeguards set down in the Mental Capacity Act 2005 (MCA). These are also known as Deprivation of Liberty Safeguards (DoLs). The safeguards seek to ensure that people are cared for in a way that does not inappropriately restrict their freedom and therefore their basic human rights.
In May 2019 legislation was introduced with the overall aim of replacing the overly complex and bureaucratic DoLs with a more simplified regime known as the Liberty Protection Safeguards (LPS). Further details as to the rationale behind the changes can be found here.
It was intended that the LPS would come into effect by 1st October 2020, however little progress had been made towards introducing the same. Seeking to introduce the LPS without taking due care, time and attention, and not least during a pandemic, would have only served as a recipe for disaster. It is imperative that the new safeguards are correctly and carefully implemented to ensure an effective and successful system is introduced.
In light of the Covid-19 pandemic, the Ministers of Care, Helen Whately, issued a written statement to Parliament confirming that the introduction of the LPS regime would be delayed until April 2022. Some provisions, covering new roles and training, will come into force ahead of that date. The full statement can be found here. It is intended that a 12-week public consultation will take place prior to that deadline.
What does this mean for privately funded packages?
The current system under the MCA, DoLS, will continue to apply. However, the DoLs apply only to people in hospital and care homes and do not apply to those in other settings, such as supported living in the community and/or privately funded care packages delivered at home. It was intended that the LPS would encompass all settings, which was widely welcomed to simplify the process.
It is frequently the case that a property and affairs deputy will utilise P's fund to cover the cost of a private care package delivered in a private setting and usually in P's home. In line with the Staffordshire County Council v SRKcase - detailed here, financial deputy's privately funding a care package at home for the benefit of P, will continue to have an ongoing duty to ensure that any deprivation of liberty which arises as a result of that package, or could potentially arise in the future, is notified to a Local Authority and authorised by the Court. On notification, the Local Authority will be required to make an application to the Court, through a 'Streamlined Procedure' set out in Practice Direction 10AA: Deprivation of Liberty applications.
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.