On 5 April 2023, the Department of Health and Social Care (“DHSC”) announced a further delay to the implementation of the Liberty Protection Safeguards (“LPS”). The LPS were first introduced under the proposed amendments under Schedule 1 to the Mental Capacity (Amendment) Act 2019 (“MC(A)A 2019”).
The MC(A)A 2019 was due to amend the Mental Capacity Act 2005 (“MCA 2005”) and replace the criticised Deprivation of Liberty Safeguards (“DoLS”) with the new proposed LPS framework. The LPS have been subject to two previous delays, and the latest announcement confirms this current Government will not be introducing any changes, that will be a matter for the future Government now.
Why has the DHSC announced a further delay?
The announcement from the DHSC dated 5 April 2023 said:
“We recognise this delay will be disappointing news for the people and organisation who have worked closely with us on the development of the LPS since the Mental Capacity (Amendment) Act was introduced in 2019. This decision has not been taken lightly.”
The delay is speculated to be due to the prioritisation of other work regarding social care.
What does this mean for providers?
Whilst we wait for the LPS to be implemented, the principles of the MCA 2005 and the safeguards provided by DoLS still apply. This means that in England, local authorities will continue to be the ‘supervisory body’ for all cases in hospitals and care homes. Urgent authorisations, which allow hospitals and care homes to deprive people of liberty for up to two weeks, will also remain in place. In order to reduce the risk of people being deprived of their liberty without the proper authorisation, providers should continue to do the following:
- Adhere to the DoLS Code of Practice which sets out guidance for care homes in relation to how to avoid unlawfully depriving someone of their liberty and how to act in a person’s best interests. Anyone with responsibility for applying for DoLS must have regard to the Code of Practice, which supplements the provisions of the MCA 2005 Code of Practice.
- Ensure that staff are fully trained in relation to DoLS.
- Make the necessary DoLS applications to local authorities.
- Ensure that DoLS assessments are up to date. DoLS authorisations must be removed when they are no longer necessary. The duration specified in a DoLS authorisation is the maximum time allowed without further authorisation.
- Follow up on any applications that remain outstanding and ensure that this is evidenced in a record. For example, the information could be recorded in a ‘DoLS tracker’ spreadsheet. This is a useful record to show to the CQC during inspections.
- Notify the CQC about the outcome of a DoLS application once known.
What will happen moving forward?
As a result of this announcement, civil servants from the LPS team at the DHSC have been moved to other areas. Additionally, this means that any change to the LPS is now a matter for future governments. Currently the next election is scheduled for 2024, subject to change if there is an early general election. The Government’s announcement does not include any commitment to reform either the legislative framework for the DoLS or the DoLS Code of Practice. The latest delay has also cast doubt about the prospect of the Government revising the Mental Capacity Act Code of Practice. Previously this was to be updated in 2022 but similar to the LPS was also subject to delays. However, the Government has yet to announce or confirm whether it will proceed to update the existing Mental Capacity Act Code.
In the meantime, whilst the social care sector waits for further clarity, providers will need to continue using the existing DoLS framework to ensure that appropriate authorisations are in place.
If providers need any advice or assistance in relation to issues arising from the current DoLS system or the LPS our specialist solicitors can help. Please contact Ridouts Professional Services Ltd using the email address email@example.com or by calling 0207 317 0340.