The New Liberty Protection Safeguards and its implications for social workers Tim Spencer-Lane

why is liberty important? “The law requires objective analysis of a subject not an object. The incapacitated person is the subject. Therefore it is their welfare in the context of their wishes, feelings, beliefs and values that is important. This is the principle of which asserts an obligation to help others further their important and legitimate interests, not one’s own.” Westminster CC v Manuela Sykes (2014)

it also an issue for children … In Re D (2017) the Court of Appeal held that a parent can consent to DoL on behalf of their 16/17 year old child who lacks Gillick capacity if valid consent provided, there is no DoL - Article 5 is not engaged Permission to appeal to the Supreme Court has been granted

What are the DoLS? Poorly drafted Paperwork heavy An administrative procedure for authorising a DoL in hospitals and care homes (schs A1 and 1A to the MCA) The hospital or care home (“managing authority”) must apply to the local authority (“supervisory body”) for an authorisation The supervisory body must arrange 6 assessments: if they are “positive” a standard authorisation must be granted The authorisation can be granted subject to certain conditions A person subject to the DoLS gets rights to advocacy, an RPR, regular reviews and access to the Court of Protection DoL outside of hospitals and care homes must be authorised directly by the court Poorly drafted Paperwork heavy Orwellian terminology Consideration of justification for DoL too late in the decision-making process Limited reach – hospitals & care homes Unable to cope with caseload post-Cheshire West

why were the DoLS reviewed? House of Lords PLS report 2014 DoLS “not fit for purpose” “better implementation would not be sufficient to address the fundamental problems identified” Cheshire West [2014] UKSC 19 Expanded definition of deprivation of liberty DoLS applications increased 16 fold (30% not completed)

Law Commission’s conclusions Poorly drafted Paperwork heavy Orwellian terminology Consideration of justification for DoL too late in the decision-making process Limited reach – hospitals & care homes Unable to cope with caseload post-Cheshire West

The Mental Capacity (Amendment) Bill (as introduced into Parliament on 3 July 2018)

authorising arrangements Arrangements can be authorised which enable care or treatment of a person (aged 18+) that give rise to a deprivation of liberty Can be in any setting or multiple settings Can include arrangements for transport Cannot be used to authorise restricted contact with friends/family or the delivery of care or treatment

who is the responsible body? if the arrangements are in a hospital, it is the “hospital manager” (eg the trust) if the arrangements are via NHS CHC, it is the CCG or LHB, and otherwise it is the “responsible local authority” (the authority meeting the person’s needs or in whose area the person is ordinarily resident)

when may an authorisation be given Capacity assessment: lack of capacity to consent to the arrangements Medical assessment: person is of unsound mind Necessary and proportionate assessment: risk of harm to self or others

pre-authorisation review non–objection cases 75% of cases? Independent person Objection cases Approved Mental Capacity Professional

care home arrangements the care home manager must commission the relevant assessments and confirm criteria are met the evidence is then presented to the responsible body who makes the final decision (and arranges a pre-authorisation review) care home is also responsible for care plan and ongoing reviews

the key safeguards duty to provide care plan (the “authorisation record”) rights to regular reviews (and earlier reviews following a request or new circumstances) duty to appoint IMCA or appropriate person rights of legal challenge to the Court of Protection duty on CQC to monitor and report on the LPS

key issues for social workers Deprivation of liberty will be mainstreamed: all qualified SWs will be expected to be able to identify and assess DoL LPS is designed around the key social work values of necessity & proportionality Social workers are key to the new specialist AMCP role Children’s social workers will also have an important role

Definition of deprivation of liberty? The Bill provides no statutory definition of DoL – it has the same meaning as Article 5 ECHR The Joint Committee on Human Rights (29 June 2018) recommended: Parliament should set out a statutory definition of deprivation of liberty which clarifies the application of the Supreme Court’s acid test and brings clarity for frontline professionals.

any comments/questions? Thank you any comments/questions? My contact details: Email tim.spencer-lane@lawcommission.gov.uk