In 2016/17 local authorities made 217,000 applications to deprive individuals of their liberty compared to 196,000 in 2015/16 (Source: https://digital.nhs.uk/article/7933/Number-of-Deprivation-of-Liberty-Safeguards-applications-up-11-per-cent 01/11/17).
The Law Commission set out in its report on Mental Capacity and Deprivation of Liberty (Source: https://www.lawcom.gov.uk/project/mental-capacity-and-deprivation-of-liberty 13/03/17) that the rise in applications made by local authorities is due to the widening of the definition of who was subject to DOLS in the Supreme Court decision of Cheshire West (Source: https://www.supremecourt.uk/decided-cases/docs/UKSC_2012_0068_Judgment.pdf).
The Law Commission set out that there needed to be reform on the basis that local authorities were unable to cope with the number of applications they were required to make and that deadlines were routinely missed. The Law Commission recommended that the DOLS system was replaced by Liberty Protection Safeguards (‘LPS’). The Government agreed that the DOLS system needed urgent reform and broadly agrees with the LPS model set out by the Law Commission.
The Law Commission have said that “Our recommended scheme serves the same essential purpose as the DOLS and where possible we have made use of existing mechanisms and procedures… But in designing the LPS we have removed the features of the DOLS that we have identified as being both inherently inefficient and actively detrimental to the interest of people who are deprived of their liberty.”
One key difference is that the proposed LPS system requires the local authority or NHS decision-maker to have assessed the deprivation of liberty as being justified. This assessment then needs to be confirmed by an Approved Mental Capacity Professional (‘AMCP’). This new role is modelled on the Approved Mental Health Professional position contained in mental health legislation. The AMCP assessment is proposed to be required where an individual lacks capacity and is not consenting to the treatment and care.
In addition, the Law Commission proposes that LPS should apply to individuals who are 16 and older. At present a standard authorisation under DOLS can only be granted to someone who is 18 or over; for individuals aged 16 and 17, the deprivation of their liberty can currently only be authorised by order of the Court of Protection.
A further key difference is that LPS will focus on whether the care plan in place amounts to a deprivation of the individual’s liberty, regardless of where they reside or spend their time. LPS could therefore apply to an individual who lives in their own home, whereas DOLS can only apply in a residential or hospital setting.
The Law Commission sets out that challenging the LPS system should be a Tribunal based system rather than the current model where challenges to DOLS are issued in the Court of Protection under section 21A of the Mental Capacity Act 2005. The new system would seek to reduce the pressure on Courts and refer the routine challenges to an appeal system similar to the First-tier Tribunal (Mental Health) process.
It is unclear when the new system will be introduced, the Government set out in its response to the Law Commission’s proposal that new legislation would be introduced when parliamentary time allows.
If you have questions about someone who is deprived of their liberty then please contact our Court of Protection department on 0208 492 2290.
Andrew Spooner, Trainee Solicitor
Posted on Monday, 9th April 2018