The replacement of the Deprivation of Liberty Safeguards (DoLS) has been long-awaited since the introduction of the Mental Capacity (Amendment) Act 2019. The draft Code of Practice for the Liberty Protection Safeguards (LPS) was published on 17 March 2022 and the consultation period for the draft Code closed on 14 July 2022.
It is expected that the Government will now spend the remainder of the year considering responses, with an official response to the consultation estimated in early 2023. There are plans for LPS working groups to be re-established after the consultation, which will focus on finalising policy areas and working through implementation planning. Some provisions in the legislation will be enacted earlier, to allow for organisations to begin training. A final version of the Code of Practice and regulations will then be published and laid before Parliament. October 2023 is now the earliest probable date for implementation, whilst others speculate that as is often the case, there will be further delays and April 2024 is more likely.
The current DoLS scheme has for a long time had its challenges. Local authorities have struggled to meet the deadlines for carrying out assessments and granting authorisations, compounded by the ongoing pandemic. Furthermore, the maximum duration for authorisations currently being only 12 months, means that there is a never-ending cycle of deadlines. A new national DoLS court at the Royal Courts of Justice was also announced over the summer, which will hear all applications seeking authorisation to deprive children of their liberty, the number of such cases rose by a staggering 462% between 2018 and 2021. The specialist court aims to provide the necessary expertise to deal with matters where children have very complex needs or are at significant risk and do not meet the criteria to be detained under the Mental Health Act 1983 or be placed in secure accommodation.
The new LPS regulations aim to streamline the process, reducing the number of assessments from six to three and crucially, authorisations will be able to be renewed, initially for a further 12 months and thereafter, for up to 36 months, without needing to repeat assessments.
The LPS is set to go further than the current DoLS scheme and will not be limited to hospitals and care homes, now available to people living in their own homes or in supported accommodation. This move will allow vulnerable people to maintain more of their freedom whilst receiving appropriate care and support. Should their needs change, as the LPS will apply to the ‘arrangement’ rather than the specific setting, there is increased flexibility. Additionally, the LPS will apply to 16 and 17-year-olds in social care settings including children’s homes, short breaks and youth club provisions.
While there is still a while to go until implementation and the Code of Practice is still in draft form, it may be useful for both organisations and individuals to start to consider what the changes may mean for their service or family member. Once in force, all health and social care staff will be expected to be aware of the definition of deprivation of liberty and its threshold, including being able to recognise whether a restriction is necessary or proportionate.
It is projected that the LPS scheme will make huge savings for social services departments and other agencies required to make Court of Protection applications. However, in order for the LPS scheme to be successful, funding must be in place to support the increasing demands of social care, especially with the growing ageing population.
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