Liberty Protection Safeguards certain to be delayed again but no word yet on new timeframe
Story updated 15 December 2021
The Liberty Protection Safeguards (LPS) is certain to be delayed again, with the government yet to consult on how to put the scheme into practice.
The Deprivation of Liberty Safeguards (DoLS) replacement was originally due come into force in October 2020, but this was then put back to a target of April 2022, due to the impact of Covid on health and social care.
The primary legislation that is the basis for LPS was passed in 2019, but its implementation requires the passage of regulations by Parliament and the drawing up of a code of practice, detailing how the scheme will be implemented.
For this to happen, ministers would need to carry out a 12-week consultation on the draft code and regulations, consider and respond to this, draw up the final code and lay the regulations before Parliament. Regulations can then take up to 40 days to become law.
With April 2022 less than four months away, this is impossible as a date for implementation. However, the government is yet to confirm that it will need to delay LPS again. As late as June of this year (see timeline below), it described the consultation on the draft code and regulations as “forthcoming”.
As a result, councils and other sector bodies have had to continue preparing, as far as possible, for April implementation without full details of how the system would work and alongside their other responsibilities, in the context of Covid.
Social work leaders told Community Care this was causing significant challenges for practitioners and managers.
‘Incredibly frustrating and difficult’
“We’re in an incredibly frustrating and difficult position,” said Lorraine Currie, chair of the national DoLS leads group.
“We were given a realistic expectation of consultation. The timeline still exists, it’s unchanged. Spring to summer consultation – it’s now winter. We’re way off the timeline.”
She said that councils and other relevant organisations needed an announcement that says “please don’t do anything on LPS until we give you the go-ahead”.
“That would be great – so we don’t need to commit time, money, staffing,” she said. “Until we get that we have to press on as if it is April 2022.”
Currie added: “I don’t understand why they can’t give us some direction – something that gives us a clue in some sense that the end is in sight. When is a reasonable expectation of consultation going to happen or not happen?”
Claire Webster, interim service manager for North Yorkshire council’s MCA/DoLS team, said: “A lot of MCA/DoLS leads are feeling frustrated. It takes an enormous amount of resource to plan any kind of change.”
Jenefer Rees, chair of the Adult Principal Social Worker Network, said the delay was leading to resources being wasted.
“This delay definitely causes a lot of uncertainty, and actually results in time and resources in terms of planning and collaboration between different partners being wasted,” she added. “It is very hard to maintain focus and momentum with change when timescales and deadlines keep being delayed.”
Currie said: “Councils are investing. Half of the West Midlands councils have planned their operational structures. Technically, [April’s] next year’s budget – so do we commit budget or do we don’t? Then there’s the IMCA [independent mental capacity advocate] provision. We know that IMCA will be wider and longer under LPS. Our current IMCA contract is due to end but we don’t know what we’re tendering. Do we not tender and risk the provision falling apart?”
What the LPS means for you
The LPS establishes a process for authorising arrangements 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 the scheme.
Whereas the DoLS only apply to hospitals and care homes, the LPS can be used in other settings, for instance supported living, shared lives and private and domestic settings. Whereas the DoLS apply to those aged 18 and over, the LPS apply to people aged 16 and over.
The ‘responsible body’, which replaces the ‘supervisory body’ under DoLS, may authorise arrangements if the person lacks capacity to consent, has a mental disorder within the meaning of section 1(2) of the Mental Health Act and the arrangements are necessary to prevent harm to the person and proportionate to the likelihood and seriousness of harm. For more information, read lawyer Tim Spencer-Lane’s guide to how the law will change under LPS.
Currie said the uncertainty was also leading councils to stop development work in relation to DoLS.
DoLS development work stalled
“There might be changes to the [DoLS] forms we could make, there might be changes to process and practice,” she said. “But you’re hindered because we’ve got LPS coming along.”
Referencing the considerable backlog in DoLS cases – the legacy of the 2014 Cheshire West judgment that lowered the threshold for a deprivation of liberty – she said: “It’s very hard to do anything to deal with backlogs because you don’t know how long the gap is. If it’s a three-year gap we can focus our energies on DoLS, maybe taking some of the LPS learning and applying it in the framework we’ve got now.
“But because technically we’re thinking April – it’s literally Christmas and then April. Those of us who have to still do this as a day job are spending significant amount of money and time on preparing for LPS.”
Webster said the government needed to provide plenty of time for preparation once it had published the draft code and regulations, not just to help sector bodies but also for public engagement.
“The biggest change [from DoLS] is that these arrangements will apply to any other setting…[including] people in their own homes, I don’t know how much they understand that. There’s a lot of public engagement that needs to happen that we’re not able to do without that information to provide reassurance that when these come in, they are about providing safeguards rather than enforcing restrictions on people.”
Importance of code for understanding
She said the code of practice, which will encompass the wider Mental Capacity Act as well as the LPS, would be critical in helping councils and other bodies understand how LPS should be implemented.
For example, the LPS replaces the concept of a person objecting to arrangements with there being a reasonable belief that the person does not want to reside or receive care in a particular place. In such cases, an approved mental capacity professional – a new role created under the scheme likely to be predominantly carried out by social workers – would be appointed to review cases prior to authorisation.
“So that would be something that would be very good to know about what would be deemed as significant enough for an AMCP to get involved,” said Webster.
She added: “There’s a lot of rumour about when it may be postponed to, like the autumn of next year. That’s still not a huge amount of time for the major change it is proposing. You do absolutely need a decent amount of time between the release of those codes to hold the really important conversations to have the workforce and planning in place to implement it properly. You need as much build-up time as you can get. The more time they can give the better – the key is the sooner they can tell us about delays the better.
Rees added: “I am very confident that once there is more clarity in relation to the code of practice and timescale for implementation, this will be achieved with professionalism, and with a clear focus on the rights and wellbeing of people who need to be supported in this way.”
‘Struggle to see how April 2022 is possible’
Advocacy provider VoiceAbility said it welcomed the extension of the IMCA role under LPS, but that there was a need for a new timetable.
Charlotte Gill, director of policy, public affairs and marketing, said: “The decision to deprive someone of their liberty is a serious one and the Liberty Protection Safeguards are complex so we must get implementation right and open dialogue and consultation is the best way to do that.
“We look forward to the consultation process but struggle to see how a target of implementation from April 2022 is going to be possible. We encourage the government to review and update the timetable so that advocacy providers and local authorities are able to make sure LPS is rolled out successfully from day one.”
A Department of Health and Social Care spokesperson said: “We are focused on the successful implementation of the Liberty Protection Safeguards, working to make the process simpler, more streamlined and put individuals at the heart of the decision-making process.
“We will continue to work with the sector as we consider all the feedback received from the public consultation. Our implementation plans will be published in due course.”
Implicit criticism of Cheshire West
Meanwhile, the government made an implicit criticism of the Cheshire West judgment as it set out its plans to replace the Human Rights Act 1998 with a “bill of rights”.
It cited the case as an example of public policy priorities and decision-making affecting public expenditure shifting from Parliament to the courts.
By lowering the threshold for what constituted a deprivation of liberty under Article 5 of the European Convention on Human Rights, it led to a huge increase in DoLS cases, from around 13,000 in 2013-14 to almost ten times that number the following year. The latest total is roughly double that in 2014-15.
It said: “In Cheshire West (and linked cases) the UK Supreme Court considered whether various placements of mentally ill individuals with foster carers or in small homes constituted a deprivation of liberty under Article 5 of the Convention, even though there was no suggestion that the placements were not in the best interests of the individuals or that they would have wanted to live elsewhere. The Court concluded that it would be a breach.”
It then quoted – seemingly approvingly – a critique of the judgment by barrister Jon Holbrook.
Holbrook said: “Substantial quantities of time, money and energy will be diverted from providing care to completing forms and engaging lawyers…Viewed through the distorting lens of human rights, care homes and hospitals, providing comfortable living arrangements, may look like gilded cages. Those deciding social policy need better and clearer vision. It’s time for social policy to be liberated from the distorting influence of human rights laws.”
‘A gilded cage is still a cage’
This is a reference to then Supreme deputy president Lady Hale’s Court famous that a “gilded cage is still a cage” Lady Hale, in delivering the lead judgment in Cheshire West.
In Cheshire West, the Supreme Court drew on the rulings of the European Court of Human Rights (ECtHR) in setting out that a person was deprived of their liberty when they were under continuous supervision and control and not free to leave their place of confinement.
Under the government’s proposals, the courts would be more led by domestic precedents and the will of Parliament, than the ECtHR, in interpreting the rights in the ECHR, which would remain in domestic law. It is unclear what this will mean specifically for the right to liberty as applied to people who lack capacity to consent to their confinement because of a mental disorder – those who are covered by Cheshire West.
- 2014 – Government asks Law Commission to review law on deprivation of liberty in light of Cheshire West case. Commission begins work.
- 2017 – Commission recommends replacing DoLS with more streamlined Liberty Protection Safeguards, covering all settings, not just care homes and hospitals, and 16 and 17-year-olds, as well as adults.
- March 2018 – Government accepts most of commission’s recommendations and pledges legislation to replace DoLS.
- July 2018 – Mental Capacity (Amendment) Bill introduced, based broadly on commission’s recommendations.
- April 2019 – bill passes into law, with implementation date of spring 2020 mooted.
- June 2019 – government sets October 2020 implementation date. However, it then fails to publish draft code of practice and regulations for consultation in time for this to happen.
- July 2020 – government puts back target implementation date to April 2022. It says it aims to consult, over 12 weeks, on draft code of practice (covering LPS and the Mental Capacity Act) and regulations to implement LPS in 2021.
- January 2021 – government maintains position that it aims to consult in 2021.
- June 2021 – government describes consultation as “forthcoming” in letter to stakeholders.