Last year we told you about the new Liberty Protection Safeguards (LPS) introduced in the draft Mental Capacity Act (Amendment) Bill. At the time, we expressed serious reservations about the loss of safeguards for people who lack capacity. The Bill has now nearly completed its journey through the Parliamentary process and we remain as concerned as ever.
The LPS will replace the current Deprivation of Liberty Safeguards (DoLS) which have been widely criticised for being administratively cumbersome resulting in substantial delays to the authorisation process and associated breaches of human rights. This Bill seeks to slim the authorisation process to ensure compliance with the law and to put the cared-for person at the heart of the decision making process. We have a more detailed explanation of how the authorisation process will work here .
There have been several significant changes to the Bill since we last wrote about it including:
1. The definition of ‘unsound mind’ has been removed from the Bill.
This has been replaced with ‘mental disorder’.
2. The LPS scheme has been extended to 16 and 17 year olds.
It will no longer be necessary to make applications to the Court of Protection to authorise arrangements for 16 and 17 year olds when they are being deprived of their liberty.
3. A definition of Deprivation of Liberty has been introduced.
Currently whether arrangements amount to a deprivation of liberty is determined by case law, the most important domestic case being Cheshire West . The Government have now introduced a statutory definition of deprivation of liberty to the Bill. **This definition is fairly controversial and is likely to undergo further amendments.**
4. The cared for person must be consulted as part of the authorisation process.
An authorisation can’t be granted unless a range of people have been consulted, including the cared for person. The purpose of this consultation is to identify their wishes and feelings.
5. Rights to information.
The responsible body must publish information about the LPS process including information about when an Independent Mental Health Advocate (IMCA) should be appointed and how to challenge the LPS. If an LPS authorisation is proposed, steps must be taken to ensure the cared for person understands this information. If they are subject to an LPS authorisation, they must be given a copy of the record.
6. Greater safeguards in Independent Hospitals.
If someone is deprived of their liberty in an independent hospital, the arrangements can only be authorised by the local authority (in England) or local health board (in Wales). The pre-authorisation review of the arrangements must be completed by an Approved Mental Capacity Professional (AMCP).
Despite these changes, we have a number of ongoing concerns about the Bill:
1. No special regard to the wishes and feelings of the cared-for person.
The current Bill does not require decision makers to have special regard to the wishes and feelings of the cared-for person. We believe that the views of the cared-for person should have special consideration and they should be empowered to be involved in the decision making process and have their decisions respected.
2. Two-tiered system of review.
Although the Bill extends the safeguards to people in independent hospitals, for all other cared for people, unless they areobjecting to the arrangements, they are unlikely to have access to the additional safeguards and independent provided by an AMCP. This system fails to protect people who do not object due to their level of disability or vulnerability.
3. No conditions.
Under the DoLS regime, where an authorisation is subject to conditions, such as contact with family, the responsible body must ensure they are complied with and non-compliance may trigger a review. The Bill makes no provision for required conditions within the LPS. We are concerned that this makes the authorisation inherently less person-centred and removes an important mechanism for review.
4. Timing and accessibility of information provision
The Bill doesn’t clearly state when information about an authorisation should be provided or what support will be provided to ensure the cared for person and any appropriate person understands what the information means.
5. Definition of deprivation of liberty introduced without sufficient consultation.
We believe there should have been in-depth consultation with charities, providers, legal and other professionals to ensure that there are no unintended consequences of introducing a definition. We are concerned that the current definition does not provide the legal clarity required and is likely to be the subject of considerable litigation and test cases.
Whilst we welcome the case for reform, we are troubled by the speed with which this Bill has progressed through Parliament. The Government has refused to pause its progression to take into account external factors, including the publication of the Independent Review of the Mental Health Act in December 2018 and significant criticism from the third sector. It has also introduced consequential amendments without sufficient consultation and we believe that the make-up of the current Bill will result in far fewer safeguards for cared-for persons under LPS.