Liberty Protection Safeguards: What are the implications of the delay?

In April 2023, the government announced that it would delay the implementation of the Mental Capacity (Amendment) Act 2019 until ‘beyond the life of this Parliament'.

The Welsh Government was ‘deeply disappointed’ by the decision. The Joint Committee on Human Rights has made clear that the delay ‘is deeply concerning, given the serious problems with the Deprivation of Liberty Safeguards (DoLS) system that we reported on last year’ in circumstances where ‘if anything, the problems with DoLS appear to be getting worse'.

The most immediate effect of the government’s decision is that the Liberty Protection Safeguards (LPS) are not going to come into force for the foreseeable future. There are also knock-on effects, including that the new version of s.4B will not come into force to provide much-needed ‘cover’ in emergency situations. And, at the time of writing, it is unclear what is going to happen in relation to those parts of the updated Mental Capacity Act (MCA) Code of Practice that relate to the main body of the MCA and which are badly out of date (this unofficial guide highlights the passages in the MCA Code that are most out of date, together with the DoLS Code). 

A number of consequences follow:

• First, the government’s decision does not change the position in relation to the need to authorise deprivation of liberty, it simply means that we have to keep using the tools that we have (i.e., DoLS) for care homes and hospitals for those over the age of 18, and the Court of Protection for everyone and everywhere else (unless the Mental Health Act 1983 applies). 
• Second, in making use of those tools, it is necessary always to be clear when steps are being taken that go beyond those strictly required by Schedule A1 to the MCA 2005 (in respect of DoLS), or the steps mandated as part of the COPDOL11 process (for ‘community DoL’).  Some hard decisions have to be made about practices which have built up over time. For example, where practitioners devote so much time trying to do an ‘all singing, all dancing’ assessment and report for a few people, they are not able to look at others at all. 
• Third, there are undoubtedly some elements of thinking that underpinned the LPS that can still be applied, especially ensuring that up-front consideration is given in care planning to capacity, best interests and the necessity and proportionality of depriving the person of their liberty.
• Fourth, someone, somewhere, is likely to want to bring before a court a challenge to the current situation where non-means-tested legal aid is only available where someone is subject to a DoLS authorisation and not where either: the person is awaiting a standard authorisation and any urgent authorisation has run out; or the authority to deprive them of their liberty is being sought from the Court of Protection under the so-called community DoLS provisions. 

The first of these inequities would be eliminated entirely if LPS is implemented (the proposed regulations change the legal aid provisions to give the right to non-means-tested legal aid from the point where the process of considering authorisation has started, and continuing thereafter), and the second would be massively reduced, as there would be much fewer of such orders sought.

It is perhaps also worth making two other points, especially for those who will no doubt be wondering about the amount of time and money expended so far:

• Those organisations who have started work towards preparing for LPS have undertaken vital auditing work of such things as: awareness of the MCA amongst those working with 16 and 17-year-olds; the actual and likely numbers of deprivations of liberty falling outside the current DoLS scheme; and relative responsibility for authorising between local authorities and integrated care boards in jointly-funded arrangements.  None of this work has been wasted, because all of it is establishing the cohort of those who need to have their deprivation of liberty authorised.
• Whether LPS will be taken forward is going to be a matter for the administration setting the direction for the next Parliament: factually, there is an election due next year.

This delay has left many people in social care feeling uncertain and wondering what to do next. We hope you can join us for an upcoming webinar which will consider the implications of the delay and how we can redirect our learning in preparing for LPS to move forward in the current legislative context.