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.
SPOTLIGHT |
SPOTLIGHT |
Lynette Wieland and Kelsey Richardson outline the key points of the draft Code of Practice and Regulations for the Liberty Protection Safeguards – and share their top tips for preparing for the go live date.
Implementation date
The Mental Capacity (Amendment) Act 2019 eventually made its way through Parliament after much debate and controversy, practitioners have finally had sight of the draft Code of Practice and Regulations, though the date for implementation of the LPS (Liberty Protection Safeguards) remains unclear.
What we do know is that the joint consultation by the Department of Health and Social Care and the Ministry of Justice on the draft MCA Code of Practice (the Code) ran from 17 March 2022 and concluded on 14 July 2022 (having been extended by a week). The Government has indicated that it will be digesting the responses over the winter.
We await the publication of a final Code of Practice and Regulations which is now realistically not going to be ready before late Spring 2023.
The Regulations will be laid before Parliament for 40 days (to allow for parliamentary scrutiny) before they come into effect. If they pass through Parliament and come into effect, this will then trigger the rollout of the training for AMCPs, who are in effect taking over the role of the BIA. There will then be a further gap of at least six months between publication and implementation. Taking all of this into account, realistically LPS will hopefully be in place by October 2023 but it could easily be beyond that, as far as April 2024. It is also important to remember too that when the LPS does come into force, there will be 1 year of transition where the Dols and LPS systems will run alongside each other to allow time for all of the existing Dols (both Court and Standard Authorisations) to be transferred over to LPS. It is good that progress is being made but we will all still be dealing with Dols for some time to come.
Key points from the draft Code
Now we have had time to digest the code and respond to the consultation, here are some of the key themes gleaned from our analysis of the Code:
1. New responsibilities for ICBs
Clinical Commissioning Groups no longer exist and as of 1 July 2022 have been replaced with Integrated Care Boards and so that is the first major change for the code that it refers to ICBs and not CCGs.
With all of these new duties will come the need for new systems and training requirements. All of which are things we would be happy to support with, so please do get in touch if that is something your organisation could benefit from.
2. Reference to case law
A recurring point arising the consultation responses that we have seen is that the Code has disappointingly little reference to case law. The case study examples provided within the draft code were often found to be slightly confusing and didn’t reflect the real-life examples from case law. It was felt that it would be of greater assistance to professionals if the code was consistent with the approach that has been taken by the Courts. For example, at paragraph 4.55, when referring to capacity ‘to make decisions at limited periods’, the Code could benefit from some specific examples such as the maternity case, NHS Trust and others v FG, where P had fluctuating capacity & restraint was required.
3. What is a DoL?
Chapter 12 of the Code has caused quite a lot of confusion due to the interpretation of what does or does not constitute a DoL and the seeming conflict between the code’s definition and the ‘acid test’ from the Supreme Court case of Cheshire West, despite this case being referred to within the draft code.
4. Timescales for assessments and authorisations
The timescales do not seem to consider the practical challenges of the work needed to carry out all the assessments and consultation which is required. For example, the Responsible Body has to acknowledge the referral within 5 days and the duration of the whole process (from referral to authorisation) should not exceed 21 days, save in ‘exceptional circumstances’ (para. 13.26).
These timescales seem to be more aspirational than realistic, especially when considered alongside the current wider challenges facing the health and care sector such as staff shortages. It is unfortunate that these challenges, which have been a significant contributing factor to the current DoLS backlogs (even before Covid), do not appear to have been considered when planning for the LPS. This could mean that we see a repeat of the same backlogs that LPS was aimed at reducing and the knock-on effect of people being deprived of the protection of the LPS, as well as further financial burden on public bodies if compensation is sought for unlawful DoL.
5. Ongoing monitoring
Paragraph 13.24 of the Code - it is unclear how each Responsible Body would appropriately monitor the person for the whole LPS process, including after authorisation. If there was reason for concern, it seems practical that this would be raised by way of a safeguarding concern and the LA who could inform the Responsible Body. This creates the potential for the LA to be the body who ultimately continue to oversee the LPS regime which was one of the aspects of the DoLS regime which LPS was going to change.
6. Who can be an AMCP?
Currently the list of eligible people who can become a AMCP is quite limited. You must be either a nurse, social worker, psychologist, SALT or OT and this could potentially exclude some existing BIAs and other health and social care professionals who have the relevant skills and experience to be effective AMCPS. A shortage of AMCPs will create significant practical challenges for implementation and complying with timescales.
In summary, there are three major areas where the final Code of Practice could be improved:
Whilst there are a lots of positives to the new draft code including the flipping of the capacity test and the inclusion of 16 and 17 year olds under the LPS scheme, this is a complex area which has become more and more challenging in recent years. There is a risk that any positives could be overshadowed by the confusion caused by the apparent inconsistency which exists between the draft code and its interaction with case law and the relevant statutes such as the Mental Capacity Act.
Top tips for preparing for the go live date
In the meantime, ahead of any final code, please do get in touch for support with preparing for these changes including advice on individual cases, training on the LPS framework, the development of policies, workforce development and guidance on new responsibilities.
Lynette Wieland is an Associate and Kelsey Richardson is a Legal Assistant at Browne Jacobson.