Delayed Reform of Deprivation of Liberty Orders

An indirect consequence of COVID-19 has been a delay on the implementation timetable of important reform of Deprivation of Liberty Orders. These will not now take effect until 2022.

Background to the need for reform: The current law

The Deprivation of Liberty Safeguarding (DoLS) Regulations came into effect in 2009 under an amendment to the Mental Capacity Act 2005. The intention was to ensure an independent assessment of necessity and proportionality be carried out before any vulnerable person can have their liberty restrained in order to provide care and treatment, deemed to be in their best interests.

Despite having a simple aim, the DoLS framework is widely acknowledged as being overly confusing, expensive and bureaucratic. 

Practitioners dealing with traumatic brain injury cases will encounter claimants who are under, or require, a DoLS Order. DoLS Orders were originally introduced following the case of HL-v- United Kingdom (2004) 40 EHRR 761 HL to replace what was known as the ‘Bournewood Gap’.  The Court found that the common law doctrine of “necessity for justification of deprivation of liberty” did not provide a vulnerable person with sufficient protection.

Whilst the initial intention of DoLS was to safeguard people in care homes and “voluntary” patients in psychiatric hospitals, over time it became evident that there were many people living in community settings who were being deprived of their liberty without lawful authorisation. This included people being cared for in their own home, in supported living accommodation and in residential placements. As a result we have ended up with two different DoLS authorisation regimes.

Within residential hospital and care settings, DoLS Orders are authorised and registered by the local authority social services department, known as a standard authorisation regime, which is relatively straightforward.

It becomes more complicated when a person is cared for in supported living or in their own home. These non-standard DoLS authorisations tend to be referred to as “community DoLS” or “Re-X DoLS”. The local authority cannot authorise the deprivation of liberty in these cases and an application must be made to the Court of Protection.

The difficulties concerning how to implement a DoLS, including what powers can be given to a case manager and support workers implementing a package in the community, may be clarified by amendments to the DoLS legislation but we will now have to wait until 2022 to find out. Currently the ‘acid test’ for a community DoLS is contained in case law only.

The Law is reformed by the Mental Capacity (Amendment) Act 2019

In July 2018 the government published a Mental Capacity (Amendment) Bill, which passed into law in May 2019. The amendment replaces DoLS with a scheme known as the Liberty Protection Safeguards (LPS) and was scheduled to be in force from 1 October 2020.

The intention of Liberty Protection Safeguards (LPS) is to provide a streamline alternative to DoLS by, for example:

1. Enabling authorisations to be renewable after one year and to last for up to three years in certain circumstances, instead of one year under DoLS;
2. Transferring responsibility for authorising deprivations from Local Authorities to NHS bodies in certain cases;
3. Reducing the number of cases requiring specialist assessors;
4. Extending the Regulations to 16 and 17 year olds, as opposed to just over 18s

However, due to the pressures of COVID-19 on the health sector, implementation of the reform has been delayed.

The new timetable appears to be as follows:

1. The consultation on the code of practice, and necessary Regulations on the new safeguards will commence in the first quarter of 2021.
2. Regulations will then be laid before Parliament in the autumn of 2021.
3. The final Code of Practice would then be published before the end of 2021.
4. Approved mental capacity professional role (AMCP) would likely come into force in January 2022.
5. The Government has given a revised implantation date of April 2022.

The new AMCP role is a critical part of the reforms as they will replace best interests assessors under the original Act, and will carry out pre-authorisation reviews to ensure that the conditions for depriving a person of their liberty had been met. By way of reminder the three conditions are as follows:

1. The person lacks capacity to consent to the arrangements;
2. The person has a mental disorder within the meaning of section 1(2) of the Mental Health Act 1983; and
3. The arrangements are necessary to prevent harm to the person and proportionate in relation to the likelihood and seriousness of harm to the person.

Why is this reform important? Some initial observations:

1. The making of a LPS order will be an important step in any civil claim; the evidence leading to the decision will be critical disclosure that insurers and their appointed experts will need to see.
2. Decisions by the AMCP will have direct financial impact on the placement selection throughout the duration of the claim; it could be very difficult indeed to persuade the court in the civil claim that a given course of action was unreasonable, and the focus will inevitably have to be on the future (rather than the rear view mirror) on any change to the placement long term.
3. The ability / scope to help inform the LPS decision may be limited but this is an area to look at when the Code is produced. An important point to make in the consultation is to try to secure locus standi in the decision making process. Even if this proves a step too far, there must be a route by which clinical concerns over the plans can be registered on first making of the order and / or renewal after 12 months.
4. There are likely to be material legal costs incurred by the Deputy associated with the LPS process and this will likely impact on ongoing and future awards for deputyship costs, already something of a cottage industry in the civil claim.
5. Whilst this is not a new issue, the need for transparency by the claimant legal team on the involvement of the AMCP and potential LPS - with an alert to the insurer that the process has been triggered - is critical. Delayed notification could cause material prejudice. This ought to be part and parcel of the Serious Injury Guide route mapping process.   

What next?

Keoghs Complex and Catastrophic Loss team will monitor developments and in particular the publication of draft regulations and Code of Practice.

For more information, please contact Natalie Dawes, Partner.