MPs and peers raise concerns with minister over delays in implementation of Liberty Protection Safeguards

The Joint Committee on Human Rights has written to the Minister of State for Social Care, Helen Whately, to express concern at delays to the implementation of the Liberty Protection Safeguards (LPS) and highlight how the existing Deprivation of Liberty Safeguards (DoLS) regime is in “urgent need of reform”.

The letter, written by the Chair of the Joint Committee, Joanna Cherry KC MP, follows the Government’s announcement in April that it would delay the implementation of LPS “beyond the life of this Parliament”.

The letter notes that the LPS are intended to replace the existing Deprivation of Liberty Safeguards (DoLS), “which are safeguards used for the protection of people who are deprived of their liberty but lack the capacity to consent to their treatment and care”.

Cherry described the delay to the introduction of the LPS as “deeply concerning”, noting that an inquiry into protecting human rights in care settings by the committee in July last year found that “serious problems with the operation of DoLS remain”.

She wrote: “The latest official statistics about DoLS show that the proportion of standard applications completed within the statutory timeframe of 21 days was 20% in 2021-2022, falling from 24% in the previous year.

“As we noted in our report on protecting human rights in care settings, “every person who is deprived of their liberty without the completion of an application within statutory timeframes is unlawfully deprived of their liberty. Where this happens, it is clearly unacceptable and constitutes a breach of the right to liberty and security”.”

The letter highlighted the committee’s view that it was “imperative” that those subject to a deprivation of liberty can challenge it, and that non-means tested legal aid must be available “regardless of whether an authorisation is in place”.

Cherry wrote: “The Mental Capacity Act 2005 Draft Code of Practice highlighted that the new LPS system would make non-means tested legal aid available before applications are finalised. It is unclear if any expansion of non-means tested legal aid is being considered for the DoLS in the short term.”

Another concern highlighted in the correspondence was that those involved in making DoLS decisions “do not receive adequate human rights training” and that some providers may not have “sufficient understanding of the operation of the system”.

The letter noted that the situation “may have worsened as a result of the uncertainty about the implementation of the LPS”.

Concluding, the Joint Committee on Human Rights posed four questions for the Government:

1. Does the Government still believe that the system of DoLS is in need of reform? If so, given the delay in the implementation of the LPS, are any reforms of the system currently planned in the interim?
2. What steps are being taken to address the delays to the processing and completion of DoLS applications, with the aim of ensuring that no one is unlawfully deprived of their liberty in a care setting?
3. Will the availability of non-means-tested legal aid be extended to include those who may be subject to deprivation of liberty in care settings without an authorisation in place?
4. What steps are being taken to ensure that those involved in making DoLS decisions receive adequate human rights training, and fully understand the operation of DoLS?

The committee requested a response by 14 June.

Lottie Winson