05 September, 2019
On 16 May 2019, the Mental Capacity (Amendment) Act 2018 received Royal Assent and is expected to come into force in the Spring of 2020. This legislation will create a new and more streamlined model for authorising deprivations of liberty in care and will replace the current Deprivation of Liberty Safeguards (DOLS) with the new Liberty Protection Safeguards (LPS).
It is expected that for the first year of implementation of the LPS, the current DOLS system will run alongside the LPS in order to ease the transition of existing cases. As stated above, the new system has been designed to streamline the process for authorising deprivations of liberty in care following on from the increased number of applications being made following the 2014 Supreme Court case of P v Cheshire West.
P v Cheshire West sets out the 'acid test' for a deprivation of liberty. The test is whether the person is under continuous supervision and control and is not free to leave. If this test is met then the deprivation of liberty requires authorisation in accordance with the Mental Capacity Act 2005, in order to ensure the deprivation is lawful.
It should be noted that the definition of a deprivation of liberty, as set out by the 'acid test' in the Cheshire West case, will remain unchanged by the new Liberty Protection Safeguards. The LPS will now include 16 and 17 year olds and will also include those persons in care settings outside of standard care homes and hospitals, such as persons residing in supported living accommodation, which previously required applications to the Court of Protection to authorise. We would say this is a welcome change.
The LPS will also enable deprivation of liberty authorisations to be renewable and in some circumstances last up to three years, rather than a maximum of one year under the current DOLS system. Deprivations of liberty will have to be authorised in advance by the 'responsible body' under the LPS, which for NHS hospitals will be the hospital manager and for arrangements under continuing health care outside of a hospital, the responsible body will be the local CCG (Clinical Commissioning Group). In all other cases, such as persons living in care homes and supported living accommodation, the responsible body will be the Local Authority.
We are now awaiting a series of new regulations, as well as confirmation of the new code of practice, which the LPS will bring about and a further update will be published in due course. In the meantime, Local Authorities should be aware of and be prepared for the upcoming changes in how deprivations of liberty will be authorised going forward.