Liberty Protection Safeguards Delayed

The Department of Health and Social Care has announced that the planned Liberty Protection Safeguards (LPS) – due to be introduced in April 2022 – are being delayed.

The LPS are intended to replace the existing Deprivation of Liberty Safeguards (DOLS) process – by which “supervisory bodies” (meaning local authorities, Care Commissioning Groups and NHS Trusts) may deprive an individual of their liberty if it is deemed to be in their best interests to do so.

This often applies to people who have dementia and have been placed in care homes that they are not permitted to leave, or to younger individuals with behavioural difficulties, severe autism, or learning difficulties who may require protection. However, depriving an individual of their liberty is often a step that has to be taken without that person’s consent, and sometimes the individual’s relatives may be upset by the decision.

The Court of Protection

Under the current process, local authorities and NHS Trusts have to follow the DOLS process and if there is significant dissent, an application will be made to the Court of Protection to enable the Court to make a decision. The DOLS process however has been seen to provide local authorities and NHS Trusts with too much power, and consequently, the Court of Protection has been called on far more than expected. The basis of the LPS reforms is to try and rebalance the process.

The reforms expected to be implemented by the LPS include:

• The protected party to be assigned an advocate to speak for them;
• A requirement for the decision-making body to frequently review the situation and whether it should continue;
• A time limit on detentions of one year initially which can only be extended if circumstances justify it; and
• The ability for any relative or interested party (e.g. family friend) to apply to the Court of Protection to challenge the measures if they are seen to be excessive or unreasonable.

Comment

It remains to be seen whether the requirement for frequent reviews of measures will be enforced strongly enough to avoid excessive periods of detention. Certainly, following the media frenzy that resulted from the Tony Hickmott case – in which the Court of Protection lifted reporting restrictions when a man had been kept in specialist hospitals unnecessarily for over 20 years – it is hoped that there will be closer and more frequent scrutiny of LPS decisions when the new laws are implemented.

Although no timeframe has been set for the introduction of the LPS, this is a development to keep a close eye on in the coming year.