Update On The Liberty Protection Safeguards

When the Human Rights Act 1998 came into force, every individual in England and Wales benefited from the right to liberty (article 5) – i.e the right to live without restriction from the state, unless it is lawful to impose such restrictions with safeguards.

The key circumstances under which someone is deprived of their liberty are imprisonment for committing a crime, sectioning under the Mental Health Act 1983, or by a hospital, or local authority, if it is decided that the person in question lacks the capacity to consent to medical treatment or care which they need.

The European Court of Human Rights in HL v United Kingdom declared that the law in England and Wales did not do enough to protect people without capacity in such circumstances. As a result of this, the Deprivation of Liberty Safeguards (DOLS) came into force to provide a framework, which has been used ever since 2009. However, the DOLS process has been criticised for not giving the Protected Party access to safeguards at all. To compound matters, since a decision from the Supreme Court in 2014 the number of applications made to local authorities increased by an astonishing 2000%, resulting in delays.

The Liberty Protection Safeguards

The Government has responded by tabling the Liberty Protection Safeguards (LPS). The LPS is due to be implemented this year. Although the target date of April 2022 was missed following feedback from various bodies, the public consultation is now in progress and will run until 7 July 2022.

Some are welcoming the essence of the LPS, which essentially will involve the Protected Party much more in the process of depriving the Protected Party of their liberty. It will be compulsory to try and gauge the Protected Party’s views and an “appropriate person” will be appointed to stand in the Protected Party’s shoes and give the Protected Party a voice (usually a close relative but failing that, an advocate). More of the administrative burden will be passed to the NHS, and the need to involve the already overworked Court of Protection will not disappear, but may not be as prevalent.

How the guidance will work in practice remains to be seen. Giving the Protected Party a voice does not happen quite enough under the DOLS process and it is very important – where the Protected Party may lack the capacity to understand why they need certain treatment or care, they may still be able to express their wishes on other related matters, such as where they live and who they see, and this may well lead to more tailored arrangements. The idea of an advocate representing the Protected Party is certainly not new – such services have existed and been used for many years often to great effect. However, this is not always arranged for the Protected Party by local authorities and bringing this requirement in may well help in situations where the Protected Party feels he/she is being mistreated.

The difficulty with appointing a family member to the role of “appropriate person” is that when there is a dispute between members of the family, other relatives can be marginalised, particularly if the appropriate person does not share information. It is hoped that there will be some means of allowing this appointment to be reviewed and monitored failing which there is likely to be a flurry of applications to the Court of Protection. It should be noted however that the Court is unlikely to intervene unless it can be shown to be in the Protected Party’s best interests to do so – the Court of Protection it is not there to settle family arguments or work on behalf of the Protected Party’s relatives.

Comment

It remains to be seen whether the LPS will drastically improve the deprivation of liberty processes we now have, or whether it may cause other difficulties.