A new framework on authorising a deprivation of liberty

17 JUNE 2019

| 1 min read

The law on authorising deprivation of liberty is changing.

The Mental Capacity (Amendment) Act 2019 received royal assent on 16 May 2019 and sets out the new scheme: Liberty Protection Safeguards (LPS), which replaces the old DoLS contained in the Mental Capacity Act 2005.

Hospital providers and clinical commissioning groups, as the new “responsible bodies” for LPS, will need to become familiar with their new expanded role in the deprivation of liberty process and ensure that boards and governing bodies as well as those on the ground are aware of the changes coming down the track. Care homes will also need to get up to speed (albeit they are not “responsible bodies”). We still await more flesh on the bones in the form of the Code of Practice, which is due out for consultation sometime soon.

For health and care professionals without much time, we set out below a summary of how the law on authorising a deprivation of liberty will change and what the new LPS scheme means.

New Liberty Protection Safeguards: overview

We look at the key features of the Liberty Protection Safeguards.

Coming into force

1 October 2020. We await new regulations and the LPS Code of Practice before the Act can come into force. The Government has confirmed that for up to a year the DoLS system will run alongside the LPS to enable those subject to DoLS to be transferred to the new LPS.
What is the meaning of deprivation of liberty?

No statutory definition within the Act. Guidance will be set out in the new LPS Code of Practice. But the acid test for what restrictions constitute a deprivation of liberty are those set out in the decision of Cheshire West of “continuous supervision and control” and “not free to leave”.
Who?

Individuals aged 16+
Where?

Anywhere and not fixed to one place. The new regime will apply in someone’s own home, in supported living, in a care home, in a hospital, in transportation between these but it cannot be varied if a patient moves between settings.
The responsible body
This is the agency charged with authorising the arrangements that give rise to a deprivation of liberty. There can only be one responsible body for any authorisation that is granted.

They fall into three categories:
1. Hospital managers in an NHS hospital
2. Responsible local authority in England re an independent hospital or care home or a local health board in Wales
3. NHS clinical commissioning group in England or local health board in Wales where a person is in receipt of NHS Continuing Healthcare
Conditions for an authorisation
- The patient lacks capacity to consent to the arrangements for care or treatment
- They have a mental disorder
- The arrangements are necessary to:
  - prevent harm to the patient
  - proportionate in relation to the likelihood and seriousness of harm
Assessment re conditions

They do not have to be done by different people. But an assessment cannot be done by person connected with a care home.
Consultation

Responsible body to carry out with the patient and others. In a care home, the manager can carry this out.
Pre-authorisation

The purpose?
Is it reasonable to conclude that the authorisation conditions are met? The PAR must be carried out by someone who is not involved in the day-to-day care or providing any treatment to the patient or in relevant cases does not have a connection with a care home.
AMCP

A new professional: the Approved Mental Capacity Professional, which is intended to build upon the best interests assessor role. Details of which professions can undertake this role will be set out in the statutory guidance. They must be involved if the patient objects. They must undertake the PAR if the patient is in an independent hospital.
Care home arrangements

The responsible body should decide whether it should carry out the process or whether it should be led by the care home manager. The responsible body can also ask the care home manager to undertake the review and/or renewal processes.
Renewals and reviews

The responsible body must specify a programme of regular reviews of authorisations to be set out in the patient’s authorisation record and could include fixed dates or prescribed intervals for reviews.

An authorisation can last for an initial period of up to 12 months and thereafter for periods of up to three years. Equally, the responsible body can determine at any time that an authorisation should cease or vary it.
Safeguards, rights of legal challenge and representation

The patient has the right to information, to regular reviews, to challenge the authorisation with the Court of Protection (using the new non-means tested section 21ZA application) and to be represented and supported by an “appropriate person” or an independent mental capacity advocate (IMCA) (if no appropriate person is forthcoming).
Interface with the Mental Health Act 1983

Part 7 Schedule AA1 of the new 2019 Act provides that patients detained under the Mental Health Act 1983 cannot be made subject to an authorisation for the purposes of a mental health assessment or treatment in hospital. However, it does permit individuals who are not detained under the Mental Health Act, but are living in the community and subject to requirements imposed under the MHA, to be subject to authorisation under Schedule AA1, so long as the authorised arrangements are in accordance with those mental health requirements.
What lies ahead: next steps
- Has your organisation got an LPS lead?
- Are your board or governing body up to speed?
- Keep an eye out for the Regulations and Code (we will be blogging on them).
- Look out for our Autumn seminars (please contact us if you would like to be on the mailing list).

Our content explained

Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.

Contact

Jill Mason

Partner and Head of Health & Care
Jill Mason

Partner and Head of Health & Care
- +(44)(0)121 456 8367
- +(44)(0)7950 025944
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A new framework on authorising a deprivation of liberty

New Liberty Protection Safeguards: overview

Our content explained

Further reading

CQC’s bulletin reviewed: four changes coming down the track

Jill Mason

Contact Jill Mason

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