Time to introduce Liberty Protection Safeguards

Posted on 6 October, 2017 · Posted in Social care policy

The protection of citizens’ freedoms and rights is an important principle, indeed fundamental to western democracies. And such protections and guarantees apply no less to those living with conditions which may affect mental capacity.

The current Deprivation of Liberty Safeguards (DoLS) are designed to consider the extent to which liberty should be restricted for a person’s safety in the context of a care home or hospital. For example, one might want to restrict the liberty of a person living with dementia who might like to go for a walk on a snowy night in their pyjamas, by limiting the operation of main exit doors out-of-hours. However, one would not wish to unduly restrict the same person from enjoying the pleasure of a walk in the garden in the daytime. Most people in the care sector would agree that the purpose of the standards is totally worthy. Unfortunately, they are no longer fit for purpose.

The current system means that an application is made by the service responsible for care of the individual, let’s say the care home, to the assessing body, usually the local authority adult services department. In theory this would be considered and the arrangements made to keep the person safe approved or otherwise. So far so good; local authorities should rightly be able to assess whether a person’s care is too restrictive; i.e. not unduly restricting their liberty to ensure enjoyment of as normal a life as possible. However, a case in 2014, heard in the Supreme Court and colloquially known as Cheshire West, broadened considerably the scope of DoLS resulting in the requirement by service providers to routinely make many more applications. Indeed, this increase has placed such a demand upon resources that local authorities are frequently now only considering urgent cases. In 2015-16 hospitals and care homes made 195,840 applications – up 30% on 2014-15’s figure of 137,540 and more than 14 times more than 2013-14’s figure of 13,700, the year prior to the Cheshire West judgement. Given that the system is clearly now not working as intended, The Law Commission, led by Tim Spencer-Lane, looked at reform of the system in 2016 and 2017, issuing its report in March 17.

The Law Commission described the current system as “an administrative and bureaucratic nightmare”, and proposed replacing the complete system with new Liberty Protection Safeguards (LPS). The LPS are designed to achieve exactly the same thing, i.e. ensure that someone is not unduly deprived of their liberty, but seek to remove the inefficiencies of the current system.

A key difference is the application of the new LPS is to cover a number of settings for one individual. Under LPS a resident who was shuttling between hospital and home and respite care would only need one authorisation, not separate ones to cover several different settings and travel between them. Perfectly sensible.

A further improvement would be to provide advance authorisation for a deprivation, for example under the current system, a local authority makes the decision to place an individual in a care home but then the care home must apply to the same local authority for authorisation of the resulting deprivation of liberty i.e. to the same body that has already made the decision. The new system should result in just one decision making process. In the case of self-funders; i.e. where the local authority is not involved in the initial decision, it would be the responsibility of the care home provider to make the application under LPS. (There is a likely civil penalty on providers who fail to do this.)

Another change would be the period of authorisation, which would be particularly helpful to people with stable diagnoses. The first two authorisations would be for periods of 12 months and then thereafter the authorisations could cover up to three years. The Commission also provided for a mechanism for review and if necessary legal challenge of decisions to ensure there remains protection for vulnerable adults.

The Law Commission conducted an extensive consultation and has designed a system that both protects an individual’s right to liberty while allowing safeguards to be imposed when needed. The question is now: when will the current system be updated to accommodate these improvements? The Law Commission has drafted a bill and concluded its work.

Who in government is to stand up for those who are less able to protect themselves from harm? Parliamentary time is needed to get this important legislation on the statute books. Are we really expected to allow Brexit to dominate to the extent that such important matters are relegated to a file gathering dust on a shelf?

Our legislators need to do more for those who deserve better protection now.