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Published 17 May 2019
The long road to replacing the current Deprivation of Liberty Safeguards (DoLS) has just passed another major milestone, with the legislative framework for the new Liberty Protection Safeguards having now received Royal Assent.
With hospitals, CCGs and care homes all facing a much bigger role in the deprivation of liberty process than they do now, organisations need to be getting to grips with the changes to come.
We look at what the new Liberty Protection Safeguards will mean for your organisation and what you could be doing now to be getting ready.
The new Mental Capacity (Amendment) Act 2019 does not contain a definition of “deprivation of liberty”. Instead we must continue to use the definition in Article 5 of the European Convention on Human Rights, as interpreted in case law (notably Cheshire West).
Under the new regime, a ‘responsible body’ will authorise an incapacitated person’s deprivation of liberty. A deprivation of liberty arising in any setting must be authorised: this includes hospitals, care homes, the person’s own home, supported living arrangements and whilst transporting the person between specified places.
The identity of the responsible body will depend on the arrangements for the person’s care:
An authorisation may last initially for up to 12 months, renewable at first for a further 12 months and then every 3 years.
An authorisation may be granted if:
The authorisation process requires the responsible body to:
There is also provision for deprivation of liberty in an emergency.
The interface with the Mental Health Act 1983 will remain largely unchanged from the current position under the DoLS. This means the Liberty Protection Safeguards route will not be open to some people, including those in hospital who are objecting to treatment for their mental health.
NHS Trusts - Will for the first time be responsible for authorising deprivations of liberty for those who are being cared for mainly in an NHS hospital. In practice, this will mean Trusts having to set up a system (with associated leadership, policies and allocation of roles/responsibilities) for arranging assessments, consulting, doing pre-authorisation reviews (and deciding when these should be done by an AMCP) plus providing information about authorisations and reviewing them as required.
Independent Hospitals - Will not be able to ‘self-authorise’ in the way that NHS hospitals can because - after changes made to the bill as it went through the legislative process - independent hospitals cannot be responsible bodies. Where care is provided mainly in an independent hospital, the authorisation process will need to be undertaken by the Local Authority (generally for the area where the hospital is located). Details of how this will work in practice should emerge as part of the supporting regulations/Code of Practice.
CCGs - Will, like NHS Trusts, be responsible for authorising deprivations of liberty for the first time, with their new duty applying to CHC funded cases, whatever the setting. They too will therefore need to establish systems to support the carrying out of assessments, consultation, pre-authorisation reviews etc, although CCGs will be able to delegate some elements of the work to care home managers where the care is being provided in a care home.
Local Authorities - Should see a lightening of their load because, instead of having to authorise all deprivations of liberty as they do now in their role as ‘supervisory body’, they will no longer be responsible for authorising cases where the care is provided mainly in an NHS hospital or is CHC funded. With their remit still covering all non-CHC funded cases in care homes, people’s own homes, supported living and independent hospitals, however, there will still be plenty of work to be done in adapting current processes to the new system.
Care Homes - Whilst care homes will not be doing the actual authorising under the Liberty Protection Safeguards, the responsible body (i.e. either the Local Authority or, if the care is CHC-funded, the CCG) can decide to delegate much of the work needed to get to the stage of authorisation to the care home manager - including organising assessments (although not actually doing them), carrying out consultation, putting together the draft authorisation record and reviewing the authorisations once granted. Again, the details of how this will work in practice are likely to be covered in the regulations and Code of Practice to come.
Although we now have the final version of the legislation itself, there is still a lot of flesh to be put on the bones about how the legal framework will work ‘on the ground’.
This further detail will take the form of accompanying regulations and a Code of Practice which are likely to contain, for example, guidance on how to decide whether someone is being deprived of their liberty plus more detail on the operational side of the authorisation process - e.g. who can do the assessments, who can conduct the pre-authorisation reviews, when to involve an AMCP, what happens in the event of a dispute etc.
The next step is therefore likely to be the publication of draft regulations and a draft Code of Practice for consultation. There are no firm timescales for this yet, but we might be looking at summer/autumn this year.
What is the timescale for all this coming into effect? Commentators have anticipated Spring 2020, but this appears optimistic. More information about the proposed timetable for implementation is expected soon.
Whilst there is still a way to go before the new system becomes a reality, it is certainly not too soon to start planning for its implementation.
Steps you could be taking now include:
Our national team of Mental Capacity Act and Court of Protection specialists can provide responsive, practical advice to commissioners and providers across the health and social care sector on all aspects of the law in this area, including:
+44 (0)113 251 4763
+44 (0)191 404 4045
+44 (0) 117 918 2744
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