In April, the government announced that implementation of the Liberty Protection Safeguards (LPS) would be delayed ‘beyond the life of this Parliament’.
The LPS were designed to replace the Deprivation of Liberty Safeguards (DoLS) as the main way of legally authorising the deprivation of liberty of someone without mental capacity in England and Wales. Among other changes, the LPS would allow deprivations of liberty that occur in the community, and those that affect 16 or 17-year-olds, to be authorised without a court order. They were originally due to be implemented in October 2020, but have been subjected to repeated delays.
The government’s phrasing, ‘beyond the life of this Parliament’, means that no decision about whether or not to implement the LPS will now take place until after the next election, which is likely to occur in the second half of 2024. There will inevitably be some time between the formation of a new government and a decision being made and a further period between the decision and the implementation date; so implementation before 2026, if it occurs at all, now seems unlikely.
The Welsh Government, which would be responsible for administering the LPS in Wales but must wait for the Westminster Government to first implement the law, has released a statement saying that it is ‘deeply disappointed’ with the decision.
For health and social care practitioners, the most important implication of the delay is that the Deprivation of Liberty Safeguards remain legally binding and must be complied with in any circumstances in which it is suspected that a person who lacks mental capacity is deprived of their liberty. Similarly, practitioners must continue to bring cases involving 16 and 17-year-olds, or which occur in the community, to the Court of Protection. No part of the Mental Capacity (Amendment) Act 2019, which contains the LPS, is in force; so practitioners simply cannot use it.
Local authorities and other organisations which would have been ‘Responsible Bodies’ under the new law have put considerable work into preparing for the LPS. Although those involved might be disappointed by this development, there is no reason to think all of their work will have been wasted. Preparing for the LPS has allowed many organisations to develop a better understanding of the deprivations of liberty that occur in their area and some have, in preparation for the LPS, developed more robust systems for educating their workforces and processing applications. This good work can be redirected towards minimising the delays associated with DoLS and Court of Protection applications while still protecting the human rights of those deprived of their liberty.
A remaining area of uncertainty is the fate of the revised Code of Practice for the Mental Capacity Act 2005 (MCA). The government published a draft for consultation in June 2022; but it integrated the LPS Code of Practice and was due to be brought into force with the new law. The LPS parts of this draft could be removed in order to issue an updated Code for the rest of the MCA, but the government announcement gives no indication that this is planned. In the meantime, the draft Code is not legally binding, but practitioners have a legal duty to ‘have regard’ to the existing Codes of Practice for the MCA and DoLS. In these circumstances, they should not generally use the draft Code.
Those wishing to monitor how this area of law develops over the next few years should keep track of two Parliamentary Bills that will have implications for whether or not the LPS is eventually implemented and whether or not they are substantially changed before implementation.
The Draft Mental Health Bill may lead to changes in the LPS. In particular, the Parliamentary Committee on the Bill has recommended (at paragraph 181) excluding autism and learning disabilities from the definition of ‘mental disorder’ under the DoLS and the LPS. This would mean that a learning disability or autism could not supply legal grounds for depriving someone of their liberty, although a person with a learning disability or autism could still be deprived of their liberty if they also had a diagnosis that was still considered a ‘mental disorder’ and their deprivation of liberty met all of the other legal requirements.
More fundamentally, the Bill of Rights Bill would alter how UK courts must interpret international human rights law. As the definition of a ‘deprivation of liberty’ is derived, via the Cheshire West case, from the European Court on Human Rights, it could be significantly changed if the Bill of Rights becomes law. This, in turn, could lead to sweeping changes in the administration of deprivations of liberty.