Deprivation of Liberty Safeguards: Towards Liberty Protection Safeguards
News and presentations from today’s conference focusing on the implications of the House of Commons Briefing Paper and the practicalities of moving towards Liberty Protection Safeguards in your service.
Towards Liberty Protection Safeguards The Law Commission’s DoLS Review: The Final Report, Recommendations and Draft Bill
Tim Spencer Lane Lawyer Law Commission for England and Wales
- the flaws with the current system, and case law examples
- providing appropriate care and better outcomes for people who lack mental capacity and helping their family and carers.
- moving from DoLS to Liberty Protection Safeguards: a look at the Law Commission’s final report and proposals for DoLS reform
- what could provisions e look like under a new system?
- the levels of safeguards under the proposed system
- moving forward: implications for practice
The Law Commission’s review of the Deprivation of Liberty Safeguards – summary of the final report
On 13 March 2017, the Law Commission published its final report (which includes a draft Bill) on the Deprivation of Liberty Safeguards (DoLS). The report recommends the DoLS be repealed as a matter of “pressing urgency” and proposes a new scheme, called the Liberty Protection Safeguards.
The Liberty Protection Safeguards
The new scheme would provide for a more streamlined approach to authorising deprivations of liberty, which would lessen the administrative burdens on public authorities. There would be no more urgent authorisations; arrangements must be authorised in advance, as far as practical.
The new scheme would be wider in scope than the DoLS, applying to people aged 16+ and across all settings (not just hospitals and care homes). It could authorise arrangements which amount to a deprivation of liberty, including in multiple settings (covering, for example, routine hospital admissions and respite care) and transport arrangements, without the need for multiple authorisations.
The arrangements must be authorised by the “responsible body”. This would be the NHS if the arrangements are being primarily carried out in a hospital or via the provision of NHS continuing health care. In all other cases – including self-funders - the responsible body is the local authority.
In order for arrangements to be authorised, the responsible body must arrange three assessments and undertake the required consultation. The assessments are a capacity assessment, a medical assessment and an assessment of whether the arrangements are necessary and proportionate (having regard to harm to the person or others). These three assessments must be completed by a minimum of two assessors, who must be independent of each other.
The scheme allows for greater use of equivalent and previous assessments. It also makes provision for fluctuating capacity; an authorisation will not necessarily cease in such cases as long as any periods of capacity are short-lived.
All assessments must be signed off personally by an independent reviewer. In addition, where a person is objecting to the arrangements or where the arrangements are necessary and proportionate to prevent harm to others, an Approved Mental Capacity Professional will be appointed to provide additional scrutiny (including meeting with the person).
All authorisations entitle the person to key safeguards, such as reviews, advocacy and rights to challenge the authorisation in a court. The right to advocacy apply provided that there is not an appropriate person to represent and support the person. Advocacy is appointed on an opt-out basis, as opposed to an opt-in basis under the DoLS.
The draft bill includes wider reforms to the Mental Capacity Act. These reforms are intended to provide Article 8 rights and improve decision-making under the Mental Capacity Act – regardless of whether a person is being deprived of their liberty.
There would be three key reforms in this respect:
- The best interests checklist in section 4 of the Act would be amended to require greater weight to be given to the person’s ascertainable wishes and feelings.
- The statutory defence under section 5 of the Act would not be available to professionals in respect of certain key decisions (such as moving a person into long-term accommodation or restricting contact with others) unless a written record has been prepared, which confirms a number of matters, for example that a formal capacity assessment has been undertaken and rights to advocacy have been given effect.
- The Government would be given regulation-making powers to establish a supported decision-making scheme.
The report also recommends allowing persons to consent in advance to deprivations of liberty (which would mean that the Liberty Protection Safeguards would not be needed) and creates a new tort of unlawful deprivation of liberty actionable against private care providers.
Tim is a lawyer at the Law Commission for England and Wales. He was responsible for the Commission’s review of the Deprivation of Liberty Safeguards. A final report and draft Bill were published in March 2017. Tim was previously in charge of the review of the regulation of health and social care professionals. This proposed a single legal framework for the UK’s nine regulators including the GMC and HCPC. The final report, including a draft Bill, was published in 2014. Tim was also responsible for the Commission’s review of adult social care. The final report was published in 2011 and formed the basis of the Care Act 2014 and the Social Services and Well-being (Wales) Act 2014. He is the author of the "Care Act Manual" (second edition 2015, Sweet and Maxwell), General Editor of the Encyclopedia of Social Services and Child Care Law, and contributes to Cross on Local Government Law.
Liberty Protection Safeguards Ensuring effective use and compliance with the recommendations in practice
Alex Ruck Keene Barrister 39 Essex Chambers and Former Consultant, Mental Capacity and Deprivation of Liberty Project The Law Commission
- practical implications of the Law Commission Review
- ensuring compliance
- implications for current and future cases
- challenges, grey areas and difficult issues in practice
- current DoLS issues and what the future holds for Liberty Protection Safeguards
- Interactive discussion and group work
Alex Ruck Keene is an experienced barrister, writer and educator. His practice is focused on mental capacity law (broadly defined) in which he is able to provide specialist advice and representation, as well as delivering expert training for front line professionals. He also writes extensively in the field, editing and contributing to leading textbooks and (amongst many other publications) the 39 Essex Chambers Mental Capacity Law Report, the ‘bible’ for solicitors (and others) working in the area. He is the creator of the website www.mentalcapacitylawandpolicy.org.uk, providing resources and expert commentary on some of the most difficult mental capacity issues.
Alex is an Honorary Research Lecturer at the University of Manchester, a Wellcome Trust Research Fellow and Visiting Lecturer at Kings College London, and a Research Affiliate of the Essex Autonomy Project at the University of Essex. He spent 2016 on secondment to the Law Commission as a consultant to their Mental Capacity and Deprivation of Liberty Project, although he chairs this conference in a personal capacity.
We are also running this conference on Friday 20th April in London. To register your place, email firstname.lastname@example.org
Future conferences of interest:
Masterclass: Deprivation of Liberty Safeguards
Monday 22 January 2018
De Vere West One Conference Centre
Transforming Mental Health Services for Children & Young Adults
Monday 26 February 2018
De Vere West One Conference Centre
Psychological Therapies in the NHS
Wednesday 21 March 2018 — Thursday 22 March
Millenium Conference Centre
8 December 2017