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On the 16th July, Parliament held it's first debate on the Mental Capacity (Amendment) Bill in the House of Lords. During the session, peers discussed the government’s proposed Liberty Protection Safeguards (LPS) model, which will replace the current Deprivation of Liberty Safeguards system (DoLS) after the bill becomes law. The LPS is designed to provide a much less bureaucratic system than DoLS for authorising health and social care arrangements that involve a deprivation of liberty to which a person cannot consent.

Here are 5 key points you should know about LPS:

1. There is no statutory definition... but the government is considering one

Last month, before the bill’s publication, Parliament’s influential joint committee on human rights said the government should legislate for a statutory definition of what constitutes a deprivation of liberty. This would limit the scope of deprivation of liberty compared with the Supreme Court’s ‘acid test’, set out in the 2014 Cheshire West judgment, which led to a substantial rise in the number of people whose restrictive care arrangements need legal authorisation.

In the end, the government declined to include a definition in the bill. However, after peers raised the issue at the second reading of the bill, junior health minister Lord O’Shaughnessy said the government was “listening particularly to the recommendations of the joint committee” on this issue and considering options including having a definition on the face of the bill or in a statutory code of practice.

2. "Unsound Mind"

Under DoLS, a deprivation of liberty authorisation can only be applied to people who are suffering from a mental disorder within the meaning of the Mental Health Act, though, unlike the MHA, DoLS encompasses all people with a learning disability

This was designed to replicate the provisions of article 5, which provides for the deprivation of liberty of people of ‘unsound mind’. However, the Law Commission proposed using the ‘unsound mind’ criterion directly and the government has followed this course in the bill.

The commission’s argument was that there were people of ‘unsound mind’ who are excluded from the definition of mental disorder in DoLS. Using the term would also help the law in England and Wales to adapt to changes in case law from the European Court of Human Rights, a point made by O’Shaughnessy at the second reading debate.

3. No best interests assessment

Under DoLS, when an application has been made to deprive a person of their liberty in a care home or hospital, the council or health board overseeing the process appoints a best interests assessor (BIA) to determine whether the person is, or will be deprived of their liberty, and, if so, whether this is in the person’s best interests, necessary to prevent harm and proportionate to the likelihood and seriousness of that harm. This is the best interests assessment.

In line with the Law Commission’s blueprint, the bill would abolish the best interests assessment and put in its place an assessment of whether the arrangements are “necessary and proportionate”. This means that less intrusive measures have been found to be insufficient for safeguarding the person or possibly other people.

4. Increased role for care homes

The bill seeks to lighten the burden on local authorities of the DoLS system in a number of ways. Firstly, in England, local authorities will no longer be the body responsible for authorising deprivations of liberty in health settings; this role will pass to hospitals, in the case of hospital arrangements, and to clinical commissioning groups in relation to continuing healthcare arrangements.

Secondly, where the arrangements leading to the deprivation of liberty are in a care home, responsibility for managing the process will fall to the care home manager, though the local authority will be the “responsible body” with the role of signing off the authorisation.

This is one of the most significant departures from the Law Commission’s proposals.

5. Renewals introduced

Unlike DoLS, under which a fresh authorisation needs to be secured every time an existing one expires, the LPS system makes deprivation of liberty authorisations renewable. A one-year renewal can be awarded after the first year if the responsible body is satisfied that the authorisation conditions continue to be met and it is unlikely that there will be any significant change in the person’s condition during the renewal period. Following this first renewal, further renewals of up to three years can be authorised.


Original article by Community Care published 26th July 2018.

To read the full article by Community Care then click here.

To learn more about DoLS and LPS then click here

Other news articles relating to DoLS and LiPS:

Supreme Court backs agreed end-of-life decisions - BBC News

New law introduced to protect vulnerable people in care - GOV.UK

Improvements to the Mental Capacity Act are long overdue - The Times

Care minister: Creating better Deprivation of Liberty Safeguards - Local Government Chronicle



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