Liberty Protection Safeguards – A New Approach To Deprivation Of Liberty

There have been plans to introduce new legislation, which will change the way in which protected parties (i.e. people who lack capacity to make certain decisions) are dealt with by local authorities and local NHS Trusts.

Protected parties may include the likes of people who have Alzheimer’s disease or dementia, stroke victims, individuals with learning difficulties or disabilities and brain injury victims. Local authorities and local NHS Trusts have various responsibilities towards those people and have the power (subject to strict restrictions) to deprive an individual of their liberty for their own protection.

Currently, in very specific circumstances, a protected party who is deemed to be at risk may currently be confined to:

• A specific location;
• Moved from their current address to another location;
• Provided with specific care or medical treatment; or
• Prevented from going to certain places and meeting certain individuals.

Such measures amounts to a deprivation of liberty, and the process by which this is imposed on a protected party are known as “Deprivation of Liberty Safeguards” (DOLS).

Deprivation of Liberty Safeguards

These safeguards often occur when someone needs to be moved into a care home or into assisted living against their will, but it is evident (and proven by way of a capacity assessment) that the individual lacks the capacity to understand why they need additional help, and cannot recognise the danger of not receiving that assistance.

The DOLS process does give strict guidelines including time frames for such decisions being taken, and some information about this is available here. However, the process has been criticised by practitioners for a long while for a number of reasons. Time frames which exist to minimise the impact of the measures on the protected party are often not complied with, the process seems quite punitive which somewhat contradicts the aim of empowerment (under the Mental Capacity Act 2005) and local authorities are sometimes accused of abusing the process to suit their own ends. The legislation was not the tidiest and it was anticipated initially that there would be far less applications to the Court of Protection than there have been.

New Liberty Protection Safeguards

The new Liberty Protection Safeguards are intended to address some of those issues. It will add some structure and a clearer, more formulaic process. For example, there are specific “decision-makers” identified for protected parties in different settings (i.e. hospital managers for hospital patients, the Care Commissioning Group for protected parties not being cared for in hospitals, the local authority for care home residents).

It will be compulsory to consult relatives and to instruct an independent capacity assessor where the protected party clearly objects to what is proposed although care homes are permitted to take the initiative themselves in certain cases and report their recommendations to the local authority. It is questionable whether these reforms will go far enough in addressing the risks presented by local authority autonomy, something that is a recurring theme in Court of Protection decisions over recent years.

Any liberty protection measures will be subject to “safeguards” which include:

• The protected party’s right to an advocate to speak for them;
• Regular reviews of the situation and whether it should continue;
• A time limit of one year initially which can only be extended if circumstances justify it; and
• Any relative or interested party (e.g. family friend) can apply to the Court of Protection to challenge the measures.

The Liberty Protection Safeguards were due to be introduced in October 2020 but have been delayed due to Covid-19 and are now expected in April 2022. Either way, this is a development to keep an eye on.