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Covid-19: taking liberties

Practice Notes
Covid-19: taking liberties


Despite further delay, the liberty protection safeguards regulations and code of practice will be properly scrutinised, as Matthew Duncan explains

On 16th July 2020, the government announced that the implementation of liberty protection safeguards (LPS), originally scheduled to have come into force this October, has now been delayed until April 2022.

Many people expressed concern that the original date was unachievable, even before covid-19 intervened to push the timetable back significantly.

However, practitioners will be concerned that the timetable for implementation has slipped; and concerns have been raised that during the pandemic, appropriate safeguards are not in place for the most vulnerable of our society.

Deprivation of liberty

A deprivation of a person’s liberty arises if an individual is under continuous supervision and control; they are not free to leave their immediate environment; and they lack capacity to consent to those arrangements.

In such circumstances, a local authority has a duty to ensure that any arrangement resulting in a deprivation of liberty is conducted in accordance with the relevant safeguards set out in the Mental Capacity Act 2005 (MCA).

These are also known as deprivation of liberty safeguards (DoLS).

These safeguards seek to ensure that people are cared for in a way that does not inappropriately restrict their freedom and breach their basic human rights.

The Mental Capacity (Amendment) Act 2019, which received royal assent in May 2019, introduced LPS to replace DoLS.

LPS will authorise the deprivation of liberty in a situation to provide care or treatment to an individual who lacks capacity to consent to their arrangements (in England and Wales).

It will replace DoLS, a system that, for many, has significant failings – namely, that it is overly bureaucratic and complicated.

As a direct result of the covid-19 pandemic, care minister Helen Whately issued a written statement to parliament in July confirming the delay to the introduction of the LPS regime.

However, some of the provisions – covering new roles and training – will come into force ahead of that date.

It is intended that a 12-week public consultation will take place prior to that deadline.

Practitioners will be concerned that as the LPS were specifically designed to address some real and pressing issues in the health and social care system, these issues will now continue for at least another two years.

The current system

Until the implementation of LPS, the current system under the MCA will continue to apply.

However, the DoLS apply only to people in hospital and care homes and not to those in other settings, such as supported living in the community and or privately funded care packages delivered at home.

It is intended that the LPS will encompass all settings, which is widely welcomed to simplify the current process.

At the present time, it is often the case that a property and financial affairs deputy will utilise the funds of an individual who lacks capacity, to cover the cost of their private care package delivered in a private setting, and usually in the individuals home.

Following the case of Staffordshire County Council v SRK [2016] EWCOP 27, a financial deputy privately funding an individual’s care package at home will continue to have an ongoing duty to ensure any deprivation of liberty which arises as a result of that package (or could potentially arise), is notified to a local authority and authorised by the court.

On notification, the local authority is required to make an application to the court, through a streamlined procedure set out in practice direction 10AA: (Deprivation of liberty applications).

Covid-19 concerns 

In its July 2020 report commenting on the impact of covid-19, the Care Quality Commission (CQC) noted a huge decline in the use of DoLS over the last few months of lockdown.

The Court of Protection (CoP) has emphasised that the pandemic does not mean that these issues can be disregarded or deprioritised.

The government has indicated that the final version of the code of practice and regulations will have to be ready at least six months before implementation to allow for training and adoption of new roles and responsibilities, and that there would be a full 12-week consultation before they are finalised.

Working back from a target of April 2022, practitioners can expect to see the regulations and code of practice in draft form by spring 2021.

Work on this will therefore need to continue despite everything else going on at the present time.

Now that we know that LPS will not be implemented any time soon, it is clear that practitioners will need to refocus on ensuring that the rights of patients are properly protected with the tools that we currently have.

This means using DoLS and making appropriate applications to the CoP during this pandemic however long it lasts.

Operation of the LPS

Like DoLS, the LPS establishes a process for authorising arrangements for enabling care or treatment which give rise to a deprivation of liberty within the meaning of article 5(1) of the European Convention on Human Rights (ECHR), where the person lacks capacity to consent to the arrangements.

It also provides for safeguards to be delivered to people subject to those arrangements.

Whereas the DoLS only apply to hospitals and care homes, the LPS can also be used in other settings, for instance, supported living, shared lives and private and domestic settings.

Nor are the LPS tied to accommodation or residence. They could be used, for example, to authorise day centre and transport arrangements.

Authorisations can also be given for arrangements being carried out in more than one setting. Whereas the DoLS apply to those aged 18 and over, the LPS apply to people aged 16 and over.

This brings the LPS into line with the rest of the MCA which applies to 16 and 17-year olds (with a few exceptions).

It would also mean that a court application is no longer required to authorise the deprivation of liberty of a 16 or 17-year-old who lacks the relevant capacity.

This will be welcomed by practitioners. Is April 2022 realistic?

The government is optimistic that some provisions of the Mental Capacity (Amendment) Act 2019 will come into force before next April, but have not yet set out exactly which provisions these will be.

The government plans for the 12-week public consultation on the draft regulations and code of practice for LPS is to be welcomed.

There will then be a period of six months to prepare for implementation.

I am sure this delay was expected by many, if not all those working in this area due to the pressures of covid-19.

These pressures are not only faced by the government, but by those on the front line of health and social care who are unlikely to have had time to undergo training and make changes to their practices ready for LPS to be implemented.

More than six years ago, the House of Lords select committee recommended that DoLS should be replaced.

It’s therefore disappointing that the DoLS system will remain in place for almost another two years.

However, it should be welcomed that the LPS regulations and code of practice will be properly scrutinised and not rushed into legislation, ensuring that people’s rights to liberty are ultimately properly protected.

Matthew Duncan is a partner at Druces