Insights

Chris Rose: 4 minute read

Liberty Protection Safeguards, the critical changes from DoLS

Deprivation of Liberty Safeguards (DoLS) have been in operation since 2009 but after 10 years, the Mental Capacity Act has been amended,  and they will be replaced by Liberty Protection Safeguards (LPS) from spring next year.

The change was heavily debated within Parliament and passed by a narrow margin. With such a delicate subject it is no surprise that the proposed changes have brought with them a wave of discussion and intrigue. In this article, we are concerned with how they will protect the rights of the individual.

What are DoLs?

The Deprivation of Liberty Safeguards are intended to: Protect people who lack mental capacity from being detained when this is not in their best interests; to prevent arbitrary detention; to give people the right to challenge a decision. In a simpler description, they are designed to protect the human rights of those that have been deemed as unable to make decisions alone for their future.

They were and still are designed to safeguard those in care homes and hospital settings but will also be widening the provision. All community-based care such as supported living environments, shared lives and private and domestic settings could previously be considered only through the courts but will be within the scope of LPS. The new safeguards will remove the limitations of the old system and ensure those who need their rights safeguarded without recourse to the courts, will be.

Multiple authorisations can also be authorised under the new processes and applied to those under the age of 18. Currently, this is the age for which DoLS can be requested without a court application. Under the new rules, LPS can apply also to a 16 or 17-year-old that lacks the mental capacity to make a decision.

Why is it being replaced?

Primarily, the Deprivation of Liberty Safeguards are being replaced in the hopes of creating a more streamlined system. This is due to the fact that the current system is at breaking point. Like many other processes within frontline services, it has been subject to an increased caseload. This for DoLS follows on from the 2014 Supreme Court Cheshire West judgement.

This, as some will be aware, reduced the threshold for what constituted a deprivation of liberty within care. It has led to a 1,650% increase in the number of applications in England. From 13,000 in 2013/14 to 227,400 in 2017/18. The government is seeking to tackle the caseload and current backlog by enabling authorisations to be renewable and last for up to three years. It is looking to streamline the process whilst at the same time widening the thresholds for eligibility and those who can authorise these.

The DoLS system was a little restrictive in terms of the age range and the environments in which it was able to operate, including the number of locations that a DoLS order could be authorised. This is another key reason for the replacement, the freedom to do more. LPS updates the way and means in which reviews can take place during the process.

Under the new Liberty Protection Safeguards, a new role has been created and that is the Approved Mental Capacity Professional (AMCP). The government has said that these individuals will be defined in statutory guidance.

The new role will build upon the existing Best Interests Assessor Role that was introduced by the DoLS system. They will be appointed by local authorities, who are responsible for ensuring that there are sufficient numbers in their area. These AMCPs will be chosen based on set criteria from the government and they will have a key role in the pre-authorisation review process.

These reviews are designed to provide the independence required by article 5 of the European Court of Human Rights. Reviews can be undertaken by an AMCP or other health or care-related professional but in some situations, the review must be undertaken by an AMCP:

  • If it is reasonable to believe that a person does not wish to reside in or receive care or treatment at a particular place;
  • The arrangements provide for the person to receive care or treatment mainly in an independent hospital; or
  • The responsible body refers the case to an AMCP and the AMCP accepts the referral

So by this token, the role of the AMCP will be to advise and be responsible for ensuring the best interests of the individuals. They will also be responsible for intervening at certain points during the review process as outlined above. These points for intervention emphasise their role in being one that seeks the best interests of the individual.

Are the changes for the best?

As with every change in life, not everyone agrees. The government overturned a change made by opposition politicians in the House of Lords and this was to ensure that people would be informed of their rights first. During a key debate within the process, shadow mental health and social care minister, Barbara Keely, criticised the amendment. Within the session, she made it clear that it was a ‘fundamental human right’ for the individual to be informed of their rights first.

 “Giving them the information after the fact is simply not acceptable,” Keeley said. Discussing the case of people with dementia, she added: “Without the information provided in advance of the process, they will have no idea what is happening when people they do not know are asking them questions.”

Keeley also criticised another element of the government amendment, which would be to remove a requirement on the responsible body to refer appropriate cases to court.

To conclude

After 10 years, Deprivation of Liberty Safeguards (DoLS), are being replaced by Liberty Protection Safeguards (LPS). With these changes come new processes and increased scope for eligibility. The plans for which have been heavily debated in Parliament, with the initial bill passing by a narrow margin.

There will be a period of dual running with the DoLS processes continuing alongside the new procedures. A new code of practice is being drafted at the moment, with further guidance expected early in the new year. We look forward to receiving these in the new year and further analysing the impact that changes will bring.