Thinking differently… about authorising a deprivation of liberty

Safeguarding the liberty of vulnerable people is one of the most important
responsibilities of hospitals, health commissioners, care home providers and
local authorities. Mills & Reeve’s Jill Mason and Helen Burnell look at the latest
framework on authorising a deprivation of liberty

Depriving someone of their liberty isn’t something that just happens in hospitals and care homes – it happens in other settings too, such as supported living and in transportation between particular places. What many would describe as the everyday rhythms of life. Under the new Liberty Protection Safeguards scheme a Deprivation of Liberty in a variety of other settings can be authorised in a simpler and less bureaucratic way.

The Mental Capacity (Amendment) Act 2019 received royal assent on 16 May 2019 and sets out the new scheme: Liberty Protection Safeguards (LPS), which replaces the old Deprivation of Liberty Safeguards (DoLS) contained in the Mental Capacity Act 2005.

As the new ‘responsible bodies’ for LPS, hospital providers and clinical commissioning groups will need to become familiar with their new, expanded role in the deprivation of liberty process. This includes ensuring that their boards and governing bodies as well as those on the ground are aware of the changes coming down the track. Care homes will also need to get up to speed, albeit they are not ‘responsible bodies’.

The old DoLS scheme has not been without its controversies and many of the reforms will go a long way towards addressing the flaws of the current system and better protect the most vulnerable in our society. DoLS and the new system are both intended as a safeguard to ensure people are only deprived of their liberty when it is in their best interests, for example, to keep them safe.

In its announcement, the government describes the reforms as introducing a simpler process that involves families more and gives swifter access to assessment and to be less burdensome on people, carers, families and local authorities. It also describes the new system as allowing decisions to be made about cared-for persons in a clearly accountable way and avoiding the need to repeat assessments and authorisations when someone moves between a care home, hospital and ambulance as part of their treatment.

New Liberty Protection Safeguards

Some of the key features of the Liberty Protection Safeguards will be of particular interest to the care home market where potentially the majority of people awaiting assessment are
likely to be residents of care homes or supported living arrangements. Hospitals will also be required to ensure authorisation of course.

Coming into force – 1 October 2020

We await new regulations and the LPS Code of Practice before the act can come into force. There will be a consultation before publication of the final code. It’s understood that the regulations and the code are expected to be published in spring 2020. The detail these contain will be very important. In the interim, the government has confirmed that for up to a year the DoLS system will run alongside the LPS to enable those subject to DoLS to be transferred to the new LPS in a managed way.

There is no statutory definition of deprivation of liberty within the act, but guidance will be set out in the new LPS Code of Practice. Currently the acid test for what restrictions constitute a deprivation of liberty are those in the decision of Cheshire West of ‘continuous supervision and control’ and ‘not free to leave’. The new regulations will impact individuals aged 16+ and will be used anywhere and not fixed to one place. The new regime will apply in someone’s own home, in supported living, in a care home, in a hospital, in transportation between these but it cannot be varied if a cared for person moves between settings.

There are several new changes to the process that will come into effect as of the 1st October 2020, including the following:

The responsible body

Currently called the supervisory body, the responsible body will be the agency charged with authorising the arrangements that give rise to a deprivation of liberty. There can only be one responsible body for any authorisation that is granted.

They fall into three categories:
1. Hospital managers in an NHS
2. Responsible local authority in
England with regard to an independent hospital or care home
or a local health board in Wales
3. NHS clinical commissioning
group in England or local health
board in Wales where a person
is in receipt of NHS Continuing

Local authorities will therefore still have work to do!

Conditions for an authorisation

There are three main conditions that mean an authorisation can take place, these are:
• The cared-for person lacks
capacity to consent to the
arrangements for care or
• They have a mental disorder
• The arrangements are necessary:
(i) to prevent harm to the cared for
person and (ii) proportionate
in relation to the likelihood and
seriousness of harm

Assessment, Consultation and Pre-Authorisation Review

The assessments of these conditions do not have to be done by different people. But an assessment cannot be done by a person connected with a care home.

The final consultation then needs to be carried out by the responsible body with the cared for person and others. However, in a care home, the manager can carry this out. The next step is the pre-authorisation review that must be carried out by someone who is not involved in the day-to-day care or providing any treatment to the cared-for person or in relevant cases does not have a connection with a care home.

An Approved Mental Capacity Professional (AMCP), is intended to build upon the best interests assessor role. Details of which professions can undertake this role will be set out in the statutory guidance. They must be involved if the cared-for person objects. They must undertake the pre-authorisation review if the cared-for person is in an independent hospital.

Care home arrangements, Renewals and Reviews

Regarding care home arrangements, the responsible body should decide whether it should carry out the process or whether it should be led by the care home manager. However, the responsible body must specify a programme of regular reviews of authorisations to be set out in the cared-for person’s authorisation record and could include fixed dates or prescribed intervals for reviews.

An authorisation can last for an initial period of up to 12 months and thereafter for periods of up to three years. Equally, the responsible body can determine at any time that an authorisation should cease or vary it. The responsible body can also ask the care home manager to undertake the review and/or renewal processes.

Safeguards, rights of legal challenge and representation

The cared-for person has the right to information, to regular reviews, to challenge the authorisation with the Court of Protection (using the new non-means tested section 21ZA application) and to be represented and supported by an ‘appropriate person’ or an independent mental capacity advocate (IMCA) (if no appropriate person is forthcoming).

Interface with the Mental Health Act 1983

Part 7 Schedule AA1 of the new 2019 Act provides that persons detained under the Mental Health Act 1983 cannot be made subject to an authorisation for the purposes of a mental health assessment or treatment in hospital. However, it does permit persons who are not detained under the Mental Health Act, but are living in the community and subject to requirements imposed under the MHA, to be subject to authorisation under Schedule AA1, so long as the authorised arrangements are in accordance with those mental health requirements.

What lies ahead: next steps

It’s incredibly important to consider the following:
• Has your organisation got an
LPS lead?
• Are your board up to speed?
• Keep an eye out for the Regulations
and Code

It remains to be seen whether the new scheme will deliver the benefits envisaged and only time will tell. But what is clear is that organisations across the health and care sector will need to get up to speed with the new scheme or risk facing legal challenge or regulatory criticism.