What now for deprivations of liberty?

What will the effect of the postponement of the Liberty Protections Safeguards be on local authorities? Local Government Lawyer asked 50 adult social care lawyers for their views on the potential consequences.

On 5 April 2023, the Government announced its decision to delay the implementation of the Liberty Protection Safeguards ‘beyond the life of this Parliament’.

Met with fierce criticism from the British Association for Social Workers (BASW) and the Welsh Government to name but a few, the decision was taken as part of the Department of Health and Social Care (DHSC)’s new policy to “prioritise work on social care”.

To find out how the decision has affected Local Authorities, Local Government Lawyer conducted an exclusive survey amongst our readers to see how Local Authorities plan to move forward after what many would describe as a devastating blow.

The results of the survey were also discussed in a webinar The LPS - What's Next? (Click to open) featuring Alex Ruck Keene KC (Hon) and Graeme Kenna, Senior Solicitor at Bradford City Council, in association with LexisNexis. The informative discussion takes viewers on a journey of how we got here, the current problems, and how Local Authority Lawyers can best deal with the deficiencies of the current regime.

What are Liberty Protection Safeguards?

The Liberty Protection Safeguards (LPS) were introduced in the Mental Capacity (Amendment) Act 2019 and were due to replace the current Deprivation of Liberty Safeguards (DoLS) system.

The key proposals were as follows:

• It would apply to more people, including 16 and 17 year olds and people in hospitals, supported living and their own home. (Currently, when a 16 or 17 year old needs to be deprived of their liberty, an application must be made to the Court of Protection).
• ‘Responsible Bodies’ could authorise the arrangements without a court order.
• Local authorities and NHS bodies would be ‘Responsible Bodies’, tasked with organising the assessments needed and ensuring there is sufficient evidence to justify a case for deprivation of liberty.
• There would be an extension of rights to an Independent Mental Capacity Advocate (IMA) and non-means tested legal aid for challenging an authorisation where a person was being deprived of their liberty outside of hospitals and care homes.
• There would be a duty to consult those caring for the person and those interested in the person’s welfare before a deprivation of liberty occurs.

Following the Government’s announcement to place LPS on the shelf, the current DoLS framework will continue under the Mental Capacity Act. Analysing how likely a revival of the LPS proposals could be, Alex Ruck Keene KC (Hon) said: “We need to proceed on the basis the LPS is not happening.”

What are the problems with DoLS?

According to the latest data, there were an estimated 270,650 applications for DoLS received during 2021-22, an increase of 5.5% compared to the previous year. At year end, the reported number of cases that were not completed was an estimated 124,145, 4% more than the end of the previous year.

The proportion of standard applications completed within the statutory timeframe of 21 days was 20% in 2021-22; falling from 24% in the previous year. There remains a large backlog of cases and delays in authorisations, which means individuals are left in potentially unsuitable care arrangements without safeguards for long periods of time.

The Chair of the Joint Committee on Human Rights, Joanna Cherry KC MP, described the delayed LPS as “deeply concerning”, noting that an inquiry into protecting human rights in care settings by the committee in July last year found that “serious problems with the operation of DoLS remain”.

This opinion was echoed by Jonathan Senker, chief executive of advocacy charity VoiceAbility, who said: “The government’s decision is an unacceptable blow to the thousands of people who are being unlawfully deprived of their liberty.

“Urgent change is needed to protect people’s rights. The government must work with local authorities now to ensure people’s voices are heard and their rights respected.”

What’s the verdict from Local Authorities?

Considering the key takeaways from Local Government Lawyer’s Liberty Protection Safeguard’s survey, answered by 52 respondents from Local Authorities, the general feelings regarding the delay were concern over the deficiencies of DoLS, disappointment over wasted resources, and confusion regarding the future of the MCA revised Code of Practice, which was tied in with the LPS.

Many respondents outlined problems with the current DoLS process, described as “wounded and starved of resources”. Concerns were raised over “huge tranches” of people being unlawfully deprived of their liberty, DoLS not applying to people in supported accommodation, and the position of 16 and 17 year-olds.

The statutory framework of DoLS does not apply to those under 18. Currently, when a 16 or 17 year old needs to be deprived of their liberty, an application must be made to the Court of Protection. Where applications have to be made, public bodies have to pay for the applications - an issue flagged by a number of respondents.

Another topic of concern was the Re X process, viewed as cumbersome due to every renewal requiring a repetition of earlier work. One respondent said: “The current Re: X streamlined process is not fit for purpose when it comes to swiftly and straightforwardly authorising non-contentious deprivations of liberty.”

However, there was a minority of respondents who said they did not believe the LPS was a good scheme, and therefore were not concerned by the delay. One respondent described the shelving of the LPS as the “least worst option”, adding: “The primary legislation behind LPS is not fit for purpose, e.g. each authorisation requiring 'reviews' - so at least two, and the draft Code was horrendous.”

Some respondents outlined how the LPS training process has created positive results, for instance, starting to share knowledge amongst children’s services about the Mental Capacity Act (MCA), and “raised awareness and improved MCA compliance”.

“No money, no clarity”

Asked why they think the LPS was postponed, many respondents cited the high cost of implementation, the Government’s lack of priority for adult social care, instability in the cabinet, and issues with the LPS framework and Code of Practice.

On the Code of Practice, one respondent said: “The original selling point of LPS was that it would be a more proportionate, less bureaucratic scheme than those it would replace, but the proposed code of practice and regulations made it appear as complex as DoLS. The code especially would have also required a significant rewrite as it did not appear to reflect practitioners’ views of relevant case law and it appeared to seek to amend the MCA which would have made it open to challenge from day 1.”

Concerns were also shared over attempts to ‘water down’ the Cheshire West acid test - whether the person is under ‘continuous supervision and control’ and is ‘not free to leave’. “Chapter 12, which attempted to dismantle the acid test, was poorly thought through and in direct conflict with existing case law”, wrote one respondent.

Many respondents simply blamed an “incompetent” Government for the delay, noting that the LPS is not a political priority ahead of a general election. One said: “There were some issues that were difficult to tackle so [the Government] have, instead, chosen to ignore the issues and leave everyone with the current inadequate systems.”

Training

Ahead of the planned implementation of the LPS, our survey found that many local authorities and NHS bodies had carried out extensive training and workshops. Some had reconfigured teams, set up task groups, and employed practitioners to lead on LPS implementation.

Commenting on this, Graeme Kenna, Senior Solicitor at Bradford City Council said: “There have been very few failed projects which have cost so much time, effort and money as this for hard pressed local authorities, health bodies and care homes.”

Outlining the preparations that had taken place within the NHS, one survey respondent said: “In the NHS there has been an enormous amount of LPS preparation activity, sustained since 2018/19 and even through the pandemic in many instances. We have been training staff on what the changes from DoLS to LPS will most likely be. Workshops, conferences and webinars have been run. Specific posts to usher in LPS had been created, sadly these are now being swept away despite the huge amount of work in embedding MCA still being before us.”

However, all is not lost. Some respondents outlined ways in which the training has influenced how their authority operates the existing regime. Positive outcomes from training included a greater awareness of DoLS, improved knowledge of the Mental Capacity Act, better recording of restrictions and improved networks across Adult Social Care and Children’s colleagues.

Practical changes outlined by Local Authorities in light of the delay included looking at training more Best Interests Assessors (BIAs) and working with existing ones to support with completing assessments, trying to organise applications to the Court of Protection better, and readjusting the LPS group into a “more general MCA group”, to share information and strategies.

Questions that remain

One of the biggest questions yet to be answered by the Government, is what is happening to the Mental Capacity Act Code of Practice?

It is not currently clear what the delayed LPS means for the publication of the revised Code, which integrated chapters on the new LPS.

In April, the BASW called upon the Government to publish the revised MCA Code of Practice “at the earliest opportunity” to ensure good practice across health and social care. It said it is also important that the Department for Education (DfE) be engaged in launching the revised code to “reinforce its importance” as it relates to 16 and 17 year olds.

Responding to the letter on 14 June, Minister of State for Social Care, Helen Whately MP said that DHSC and the Ministry of Justice will consider the feedback and publish a response to the 2022 consultation on changes to the Mental Capacity Act Code, with the aim of publishing a revised version.

MCA Code aside, we asked what steps Local Authorities would like the Government to take, going forward with the current DoLS framework under the Mental Capacity Act.

Requests included:

• “Extend the Act to all deprivations, wherever they take place, if only on a temporary basis.”
• “Legal aid to support welfare applications for 16 / 17 year olds” (The current system is reliant on Local Authorities paying for first hearings in welfare for young people).
• “Non means tested legal aid for objections outside care homes / hospitals.”
• “Make community DoL applications more like DoLS applications or combine the 2 processes by extending DoLS to all settings.”
• “Update the Association of Directors of Adult Services (ADASS) prioritisation guidance, along with the Codes – which are woefully out of date and not reflective of years of case law.”
• “Could an order be extended beyond a year where a review has determined that there have been no significant changes and no objections to arrangements?”

What to do in the meantime?

Discussing what Local Authorities can do now, Alex Ruck Keene KC, expert and educator in the field noted that one thing to consider is, what does the Act and the regulations actually require Local Authorities to do?

He said, “The MCA says you don’t have to see the person to carry out any of the assessments, which raises the question why we’re seeing everyone.” He prefaced the point by saying that of course, in most situations it would be better to see the person. However, it could be beneficial to realise that the MCA is “remarkably light touch”.

Picking out some of the standout findings from the survey, Alex noted that it was interesting that the majority of people (77%) who responded said their local authorities have separate DoLS teams and people considering community DoLS. On this point, he said: “I think it’s important to take a step back and ask why we have that. […] If you have separate systems, how are you aligning your approaches?”

Asked what steps are taken to ensure consistency of approach between the two parts of the system, the majority of survey respondents said either that they don’t know, or that it’s not possible or too difficult. One respondent wrote: “As far as I’m aware, consistency of approach is not possible as the Re: X processes do not mirror or match the DoLS ones. The practitioners just do what the forms require of them for each relevant process.”

However, there was a small minority of respondents who cited regular meetings between the two teams, the development of joint working systems and sharing of good practice.

One respondent said that although the two parts of the system are run separately, the authority has the same overall lead officer, management and legal inputting into the process “to ensure a lawful approach”.

The best of a bad job

In their newsletter published on 20 June, the DHSC LPS team said: “The Deprivation of Liberty Safeguards remain an important system for authorising deprivations of liberty. It is vital that health and social care providers continue to make applications in line with the Mental Capacity Act (MCA) 2005, and that Supervisory Bodies continue to fulfil their responsibilities with respect to authorising DoLS applications under the MCA to ensure that the rights of those who lack the relevant capacity are protected.”

Commenting on this, Alex Ruck Keene KC said: “I would perhaps want to emphasise that I agree entirely with what the DHSC LPS team said here. But that it is unfortunate that neither in that newsletter, nor in the letter from the Care Minister to the JCHR [Joint Committee on Human Rights] is it made clear how supervisory bodies can discharge their obligations (or public bodies make necessary applications to court) when it is clearly proving impossible for them to do so with the resources currently available to them.”

Working on the assumption that an LPS resurrection may be wishful thinking, the options available to Local Authorities are to continue with business as usual, wait patiently for the revised code, or consider how ‘LPS techniques’ might be used within the framework of the current law. The DoLS regime is not fit for purpose. The Court of Protection is backed up. Change is necessary, but time will tell whether this will be brought by a new system, or a new way of working with the current one.

Lottie Winson is a reporter at Local Government Lawyer