Consultation on Liberty Protection Safeguards to be launched by Government next year

This comes as the Supreme Court this week considers whether the Minister of Health for Northern Ireland has the power to revise the Deprivation of Liberty Safeguards Code of Practice, so that persons aged 16 and over who lack capacity to make decisions about their care and treatment can give “valid consent” to their confinement through the expression of their wishes and feelings.

At the hearing, the Department of Health and Social Care will ask the Supreme Court to set aside its landmark Cheshire West judgment on deprivations of liberty, arguing that the 2014 ruling was wrongly decided.

However, charities Mencap, Mind and the National Autistic Society have described the Department of Health and Social Care’s stance as “deeply troubling”.

The proposed Liberty Protection Safeguards aim to deliver “improved protection” and an easier and improved system to allow carers, psychologists, social workers and families to provide care to vulnerable people in circumstances that amount to a deprivation of liberty.

The Government noted: “The current Deprivation of Liberty Safeguards system is bureaucratic and complex, leading to poor understanding and application of the law by professionals, unacceptable distress for families and a backlog of 123,790 individuals, putting pressure on the social care system.”

According to the Government, a consultation on the Liberty Protection Safeguards (LPS) will be launched in the first half of next year, seeking the views of those affected such as families, carers and practitioners including social workers, nurses, psychologists and occupational therapists.

It will be jointly run by the Department of Health and Social Care and the Ministry of Justice.

The Government said: “This delivers on calls from organisations including the Care Quality Commission, Mencap and Mind for the implementation of new Liberty Protection Safeguards to replace the outdated Deprivation of Liberty Safeguards.”

It noted that the revised Code of Practice will incorporate changes in case law, legislation, organisational structures, terminology, and good practice since 2007 addressing “critical challenges” in the existing Deprivations of Liberty Safeguards framework.

Minister of State for Care Stephen Kinnock said: “Safeguarding the vulnerable and protecting their rights is our absolute priority of this government – this is about fixing a broken system by hearing directly from those with lived experience and their families.

“There is currently a shameful backlog in the system of unprocessed cases under the current system which means that people’s rights are not being protected.  At the same time, we know that many people in the system and their families find these intrusive assessments distressing.

“This is about ensuring we are fully focused on the most vulnerable people in our society and their families – understanding their needs, ending the maze of referrals and paperwork, and delivering the best protections and safeguards possible.”

The Minister of State for Care had said in June this year that he was “not entirely convinced” that replacing the Deprivation of Liberty Safeguards DoLS with the Liberty Protection Safeguards (LPS) would “achieve the stated objectives of the exercise”.

The three-day Supreme Court hearing on Cheshire West will be before Lord Reed, Lord Sales, Lady Simler, Lord Hodge, Lord Stephens, Lord Lloyd-Jones and Lady Rose, from today until Wednesday (22 September).

Lottie Winson