In the sixth and final episode of our Court of Protection series, Hempsons' healthcare advisory associates Rachael Hawkin and Liz Stokes give an overview of the Liberty Protection Safeguards (LPS).

00:16 - Introduction

01:23 - April 5 2023 announcement

02:25 - Recap: what are the Liberty Protection Safeguards?

04:53 - LPS objectives

06:01 - What is the definition of deprivation of liberty?

07:41 - How will the deprivation of liberty be authorised?

09:07 - Who can be a 'responsible body'?

10:44 - The impact of LPS on care planning

11:42 - The LPS process

14:39 - What is the expected timeline for LPS implementation?

16:28 - What now?

Hello, I'm Jill Baker and would like to welcome you to the series of podcasts which look at welfare cases in the Court of Protection. These podcasts are intended for social care providers. Hempsons are leading health, social care and charity lawyers who work very closely with social care providers on the full range of legal issues they face. With no further ado, I'm going to pass you across to Rachael Hawkin and Liz Stokes for the final episode. In this particular series, Rachael and Liz are both members of Hempson's Health and Social Care Advisory Team and are very experienced on working on Court of Protection welfare matters.

Hi, Jill. Thank you. I'm Rachael Hawkin and the social care sector often plays an understated role in welfare cases. So this series, which has been over a course of six episodes, is to try and take social care providers through the basics of Court of Protection for welfare cases and delve into areas where providers are likely to be involved, what they should consider and how they can prepare. Somehow we've managed to get to the final episode, which I think has flown by, and this final episode will be an overview discussion looking at the Liberty Protection Safeguards and their intended reform.

Thanks, Rachael. So we're going to look broadly at a general overview of what could potentially be quite a large topic about Liberty Protection Safeguards. But just to start almost at the end, the recent update and announcement from 5 April 2023, so this year very recently hasn't really provided us with any further forward in this, Rachael, has it?

Thanks, Liz. That's exactly right. So, unfortunately, the most recent announcement as of the 5 April basically said that the LPS isn't going to be going any further forward until the next Parliament. So we know that there's going to be an even more significant delay on what has already been a very protracted intended reform. So I'll talk about that at the end slightly in terms of the timescales and potential next steps, but it's something which the intended reform was introduced in 2019 and we are now in 2023 and really not much further forward apart from the consultation documents that we have now seen. So we can touch a bit on those and what they brought out.

Okay, so just by way of recap, what are the Liberty Protection Safeguards?

Yeah, so Liberty Protection Safeguards, the acronym of LPS, which I'm sure everybody listening to this podcast will have heard numerous times and waiting eagerly to find out what they were. So we now have the consultation document which is very hefty, it goes to 500 pages and we've also got six sets of draft regulation. The intended reform not only looks at LPs, but it also looks at amendments to the Mental Capacity Act. So we're not going to look at the amendments proposed to the MCA, we're only going to focus today on the LPs. As you know, these podcasts are intended to be a bit of a bite size kind of introductory topic to each session. So we're not going to be able to cover every aspect of reform. But I think it's worth going back to the beginning. In terms of Cheshire West, that was the case that really highlighted a floodgate and a problem with how you authorised so many cases which were now deemed to be a deprivation of liberty. We've got current mechanisms where it's either the Court of Protection that authorises it for anything that falls out of what could otherwise be authorised via a standard authorization.

So we've all known that the current mechanisms aren't quite fit for purpose and that they can't deal with the volume of deprivations of liberty. So LPS was meant to be a new streamlined process which would broaden how and the type of deprivation of liberty that could be authorised. So, as I said, the current mechanism for approval, and we looked at Section 21 a challenges in the last episode is basically for local authorities to authorise deprivations and liberties in care homes or hospitals via standard authorizations. But you can only have a standard authorization for care homes and hospitals and for those over the age of 18. So that means what you do with all of the other individuals who don't fall within those very constricted categories but are subject to deprivation of liberty? We've currently got COPDOL11s, which are a streamlined application paper which go through the Court of Protection, or you'd have welfare applications to try and get things authorised. But again, that creates a lot of backlog and it's a lot of work, though broadly, LPs intended to be a kind of a catch all. It would broaden the scope of what deprivations could be authorised via LPS and also trying to improve integration with existing legal frameworks.

So the main one being the MCA, which is why you've got this proposed reform on a dual aspect. So it looks LPS and the Mental Capacity Act.

So what are the objectives that LPS's set out?

Yeah, so they're very broad, as you can imagine. There's a lot of objectives that a new reform would try to rectify. The Department of Health and Social Care at the very outset set out the objectives of LPS as being one of simplification, one to widen, one to embed the identity of the deprivation of liberty and its authorisation within care planning, so almost to remove it as being an afterthought. They also wanted to provide an available process which was more accessible, an acknowledgment of the fact that Court of Protection proceedings can, to a lot of people, be very daunting, which is one of the reasons why we started this podcast series in the first place. They also wanted an objective of trying to improve access and they acknowledged the fact that the backlog created from Cheshire West wasn't very helpful to anybody, particularly those actually subject to deprivations of liberty, which need to have scrutiny and to be properly authorised.

So you've talked a bit there about deprivation of liberty and then going back to basics even more. What is the deprivation of liberty? What is it the right that the Liberty Protection Safeguards are trying to protect just by way of recap?

Yeah. So the fundamental place to look at is Article Five of the European the EHCR rather, which has two limbs. So first of all, you look at the objective element. So you have to have somebody who's confined to a restricted place if you look at the terms for the objective element and then also the subjective element, which means that the individual either can't or will not give consent to that confinement. So if you have those two ingredients, then you have got deprivation of liberty. The deprivation of liberty that we're looking at would be imputable to the State, which is why we need to go through the process of actually getting them lawfully authorised. In Court of Protection cases, and again, I've mentioned a few times now, it's the case of Cheshire West. And that brought out the Acid Test, which asked to make sure that individuals were subject to continuous and supervision control and not allowed to leave. That ticks the box again, to say that somebody is subject to deprivation of liberty. I think it's very important to flag from the outset that the threshold that you need to meet is only arrangements which may amount to deprivation of liberty.

So this is to make sure that we don't inadvertently screen people out of being afforded protection of having any deprivation of liberty reviewed by assuming that they're not. So it doesn't have to be an absolute that they are subject to deprivation of liberty, but such that we would have arrangements where we think that they perhaps could be, and we therefore need to look at it in closer detail.

Okay, so we've got deprivation of liberty and we're looking forward to the Liberty Protection Safeguards as they're currently considered, again acknowledging that we don't know when and how this might come into play. How will the deprivation of liberty be authorised?

So it's a very big question, which we're not going to go into full answer on the podcast. But the key concept that I think we need to talk about is the new concept of a responsible body. So that basically is going to be the individual or the organisation which approves these deprivations of liberty. It's a new concept that was brought in via LPS and it's through this concept of a responsible body that you can widen the burden of authorisation. So if we think about circumstances of how the deprivation of liberty is being brought about, that gives you an idea of who a responsible body would be in a particular case. So it's not always going to be the same person, it always very much within LPS asks you to look at the arrangements which may amount to deprivation of liberty and go through an appropriate process in light of that. So, for example, if an individual is not 18 and they're detained or rather deprived of their liberty in a hospital, then the responsible body would be the NHS trust. If an individual is in receipt of CHC, Continual Healthcare Funding, then the responsible body would be the ICB.

A really important part of being a responsible body is this introduction of a no wrong door principle in LPS, which I think is a very good principle to have. Which basically means if considering the arrangements you referred it to, one individual, say, local authority, thinking that they're the responsible body, that organisation then has to say very promptly whether or not they are the right responsible body. If they think that they're not the right responsible body, then they would refer it to who they think is correct. This is meant to be so that you don't have somebody batting it back off saying it's not us, it's somebody else. Instead, the no wrong door principle is meant to enable it to just basically be fast tracked, forwarded onto the right person until you get to the point where someone says, yes, we are the responsible body. Thank you for bringing it to our attention. We'll now put in process in place, I think one topic which is worth mentioning here for social care provider listeners is this idea of a care home manager being the responsible body. This was introduced way back when we were first looking at LPS back in 2019 and everybody, I'm sure listening to this podcast, would be very pleased to know that that was actually scrapped.

So the idea of a care home manager being the responsible body, whilst hasn't been taken off the table entirely by the Department of Health and Social Care, as they said in their statement they'll be keeping under review. They quickly acknowledge the fact that actually that's just a very burdensome role for already overstretched care home providers to take. So care home providers, care managers rather, are not captured currently in a definition of who would be a responsible body.

That's really helpful. The other part of it, I think, is about the intention in the Liberty Protection Safeguards to bring about streamlined assessments within the care planning. And that's a key issue.

Yes. So again, it's about what we're saying at the beginning that LPS wants everybody to look at deprivations of liberty as something within care planning and not an afterthought. So they want it to be integrated throughout. They want us to be applying principles of the MCA throughout. So this doesn't come as a surprise. And it also means that it should avoid unnecessary duplication of assessments. So when you're doing your care assessments, and this is key for social care providers, when you think that somebody is subject to circumstances which may amount to deprivation of liberty, then you start to make the trigger and referral process. At that point, and then all of your assessments that you're working on should go towards supplementing the LPS process rather than having to duplicate them and add in more time and burden on resources.

And then I think there's broadly three stages of the LPS process that we'll have to move through.

Yeah, that's it. So again, this is just a very high level overview, but the consultation set out that there'll be three stages to an LPS process. So first of all, there'll be consultations, assessments and determinations that would look at the capacity assessments. Because again, looking at one of the key pillars, we need to be clear as an individual lacks capacity to consent, and also medical assessments, so that would look at the reason as to why and their diagnoses which are relevant. Once you have all your assessments gathered at stage one, you then move on to the pre authorisation review stage if needed. And this is to be undertaken by an approved mental capacity professional. So an AMCP, and that again is a new concept brought in by LPs and it's meant to bring a higher level of independent scrutiny for cases which are complex or there's a reasonable belief of an objection. And this is the same type of objection that we looked at in episode five when considering Section 21 a challenges to the current Deprivation of Liberty Safeguards. So once you've got your assessments and any higher level reviews needed, you then move to the responsible body granting a final authorisation which would include a schedule for reviews.

One thing that I quite like about LPS is the potential for authorisations to last 36 months. Currently you've got maximum twelve, but for care individuals where their circumstances aren't changing, it's often quite a laborious task going through the same assessments. And whilst it obviously is very important to keep it under review, you don't want to overburden resources. And if everything stay the same, this should afford a more straightforward way of having a longer renewal period. Everything's got to be kept under review and if circumstances change, you can't rely upon it, you've got to scrutinise it. But I think it's a very good transition to go from twelve months to 36 months. One of the elements of the consultation I was perhaps less impressed with perhaps is the right way to say it is the idea of transferability of deprivation of liberty authorisations. So I had been hoped that you'd be able to almost transfer an LPS authorisation to different locations. They have, however, kind of curtailed that slightly in the consultation. And I don't know what your views are on this, Liz, but where they've said that they'll only allow transferability of an authorisation if it's for a planned deprivation of liberty.

So for example, if you got somebody that's going to regular respite or a planned hospital treatment, then you would have details of those so you could include them in your request for an LPS authorisation. If it's not reasonably foreseen, then they're not included, and you don't have the element of transferability for the current authorisation. You'd have to do a new assessment, basically.

Okay, so it'll be interesting to see how these are taken forward eventually when they are, which sort of brings us back to the recent announcements that they're not going to be taken forward at the moment until at least early next year, if not slightly beyond. So, given that update, what is the sort of timeline? Where are we now with these proposals?

I think that's a very good question. A lot of people have described it to akin to how long is a piece of string? So the Department of Health and Social Care did provide a timeline which up until the end of 2023, perhaps earlier this year, prior to the April announcement, they were kind of on track with. So the published timeline, they said, would be the response to the government consultation, which was extended itself from twelve to 16 weeks, would be published in winter 2022/2023. We're not there yet. And that's when we have the announcement that actually they're delaying it until the new parliament. I mean, if there's an election next year, that could truncate it, and it might not be as long as we think, but fundamentally we don't know when it's going to be. Either way, they put a very long stop on it in terms of it's not going to happen until we get a new Parliament. When that's sorted, the next steps after a consultation period would be once the consultation responses are published, is for the Code of Practise and the regulations to be laid before parliament. Again, which parliament that is, we don't yet know.

There'll then be a pre launch implementation period. And we already know that that's going to be at least six months. And that's to enable time for training and to allow those on the ground and those involved in LPS to identify staff, have them trained, and access different training resources that will be available to them in their local area.

That's really helpful. So presumably the position now is as you are, continue as you are, but is there anything particularly that social care providers do you think should be doing now, or is it literally a case of for now, we just have to wait and see whether the Liberty Protection Safeguards reforms are implemented?

Yeah, I think that's a difficult one because on one hand you want to be prepared, but on the other hand, your ability to prepare becomes harder if you don't know what the end point of preparing is and how much time and resource an already overstretched sector should be devoting to this. The fundamental point that you've raised is very important is the fact that in the absence of an LPS new structure, we carry on as we are already. So it's really important for care providers to continue to make referrals to local authority standard authorisations. And I appreciate that quite a lot of local authorities have got significant backlogs themselves on getting the authorisations approved, but there's nothing that eradicates the duty of a social care provider to promptly make a referral for a standard authorisation. That should always happen and you should always chase them as much as you can. It might form part of a care provider's auditing systems where they would have on their electronic dashboards, for example, it would flash up if somebody had been put in a request for a standard authorisation that hadn't been approved, then you would send a chase out to local authority.

That type of proactiveness needs to continue.

Just to point out, it's also for the social care provider point of view, it's also requirement under the health and social care regulations, isn't it, in terms of what the CQC expects from the social care provider. So it's really important to keep an awareness of the current DOLLS.

Yeah, definitely. And I think that's a very good point to touch on there is that actually when LPS does come into force, it's going to be CQC that's a regulatory body. They'll be the one monitoring this. So as much as we need to be allowed for the changes as will CQC. So the more that we can do now to prepare ourselves in making sure that we are always properly identifying deprivation of liberty, and we're making point referrals, whether it's to local authority now for standard authorisation or otherwise, that level of auditing is always going to have to be there. So the more that we can get on board and the more that we can set up good systems to keep on top of backlogs, the better. The other element that I think social care providers could use to prepare is to really embed their knowledge of the Mental Capacity Act. This is what the LPS will be enshrined in. So the more that you know of your MCA knowledge and the more training that you can go to or pick up in terms of ideas and principles and best interest checklists and how they apply, then the better.

I think that's the type of knowledge that social care providers should always have, should always keep up to date and it will put them in good stead for when LPS does actually come through.

I think that's really helpful, Rachael, thank you.

Thank you. Thanks Liz.

Thank you Rachael and Liz, for that discussion on Liberty Protection Safeguards. I certainly hope our listeners found this final episode useful. And I would say to all our listeners, make sure you look out for further materials when LPS eventually comes into force. Although, as indicated, we really don't know when that's going to be. Although this is the end of the current series, should any of our listeners have any comments, questions or suggestions for future podcasts, please feel free to get in touch with me via email at j.baker@hempsons.co.uk.