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

2. 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)

3. 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

4. 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

5. 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)

6. 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

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

8. 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

9. 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)

10. 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

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

12. 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

13. 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

14. 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

15. 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.

16. any comments/questions?
Thank you
any comments/questions?
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