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Deprivation of Liberty & the Court of Protection - upcoming changes

View profile for Michael Sherlock
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What happens when an adult cannot make decisions about their own welfare and they are subject to restrictions where they live?

Some adults are unable to make decisions for themselves at the time when they need to be made – they “lack mental capacity”. This could be for a variety of reasons such as mental health problems, learning difficulties, brain injuries, or diseases like Alzheimer’s. An adult who lacks capacity (known as “P” in the law) may be subject to restrictions in the place they live, be it a care home, a hospital, a supported living placement, or their own home.

There is often a good reason for these restrictions, which are normally in place to keep P safe from harm. However, the courts have said that any restrictions that amount to a deprivation of P’s basic human right to liberty need to be scrutinised carefully and properly authorised in order to ensure that P’s rights under the Human Rights Act 1998 are protected.

The courts have decided that there is likely to be a deprivation of liberty where P is not free to leave the accommodation and is subject to close supervision and control. The courts have also said that the need for scrutiny and authorisation applies even if the restrictions are likely to benefit P or even if P appears to be happy with the arrangements.

Currently there are two main systems for scrutinising and authorising the deprivation of liberty of an adult who lacks capacity, depending on what sort of setting they are living in.

If P is residing in a care home or hospital, then their deprivation of liberty is authorised under the Deprivation of Liberty Safeguards (“DoLS”) system. Under this system, P’s local authority should scrutinise the arrangements in place at the care home or hospital and then decide whether or not to grant an authorisation and whether or not to attach any conditions to the authorisation.

If P is residing in any other setting, such as in supported accommodation, and there is some involvement from a local authority or NHS body in their living and care arrangements, then their deprivation of liberty is meant to be authorised by the Court of Protection. The Court of Protection is a specialist court dealing with cases that concern adults who do or may lack the mental capacity to make important decisions. In straightforward cases there is a “streamlined” procedure for obtaining authorisation from the Court of Protection for a person’s deprivation of liberty, where P is not in a care home or hospital but in some other setting.

From 1 October 2020 a new unified system is going to be in place. A new law called the Mental Capacity (Amendment) Act 2019 has recently been passed and this is going to significantly change the system for authorising deprivations of liberty. This new system will be known as Liberty Protection Safeguards (“LPS”). The new system will apply to those aged 16 and over.

Under the new LPS system a local authority or NHS body will be able to authorise arrangements giving rise to a deprivation of P’s liberty in any setting, not just in care homes and hospitals.

Before a responsible body can authorise P’s arrangements, it will need to be satisfied that three key conditions are met – these are:

the person who is the subject of the arrangements lacks the capacity to consent to the arrangements;

the person has a mental disorder (meaning a disorder or disability of the mind, not just mental health problems); and

the arrangements are necessary and proportionate to prevent harm to the person and proportionate in relation to the likelihood and seriousness of harm to the person.

Before an authorisation can be made there will need to be consultation with P and any family members. P may be represented and supported either by an appropriate person or an Independent Mental Capacity Advocate (IMCA) when an authorisation is being proposed and while an authorisation is in place.

In all cases, someone who is not involved in the day-to-day care of P will need to do a pre-authorisation review to check whether conditions 1, 2 and 3 are met or whether it is reasonable to conclude that they are met. In some cases, including where P objects to the proposed arrangements, an Approved Mental Capacity Professional will need to carry out the pre-authorisation review.

Once an authorisation is in place there will need to be regular reviews of the authorisation by the local authority or NHS body or in some circumstances the manager of the care home in which P lives. There will also be a right to go to the Court of Protection to challenge the authorisation if P or those concerned about P wish to do so.

For now the current system of DoLS authorisations and Court of Protection authorisations remains in place, but the new LPS system will soon be upon us. Anyone interested in these issues will need to keep a careful eye on the details that emerge over the coming months. There is still a lot of detail to be fleshed out in further regulations and a LPS Code of Practice. Importantly there is currently no definition in the new law of what exactly a deprivation of liberty is. We will continue to rely on what the courts have said about what makes a situation a deprivation of liberty, but there will also be guidance given in the new Code of Practice.

This is a complex area of law and so if you are subject to a deprivation of liberty, or you know someone who is, and have concerns about the situation, then you should seek specialist advice as soon as possible.

TV Edwards has a team of solicitors with expertise in mental capacity, deprivation of liberty and Court of Protection cases. If you are seeking legal advice relating to mental capacity, deprivation of liberty or Court of Protection issues,  then please contact us on 0203 440 8000 or by email to a_courtofprotectionreferrals@tvedwards.com to see if we can assist.