Social Care Law: The Liberty Protection Safeguards
What will be the effect of the Law Commission’s proposals, particularly for people in ATUs?
Belinda Schwehr explains and examines new legal proposals intended to protect individual liberty. What will be the implications for people in assessment and treatment units?
The Law Commission’s proposals to protect an individual’s liberty cover arrangements in supported living accommodation, shared lives schemes, respite care, children’s homes, residential special schools, foster care, and private and domestic settings. They will no longer be setting-based at all.
The Liberty Protection Safeguards (LPS) will replace Deprivation of Liberty Safeguards (DoLs) and will apply to arrangements proposed or in place to enable the care or treatment of a person, and which would give rise to a deprivation of that person’s liberty. They will apply when:
– a person is to reside in one or more particular places;
– a person is to receive care or treatment at one or more particular places;
– the means by and manner in which a person can be transported to a particular place or places.
Unfortunately it will still be necessary to decide whether a regime amounts to deprivation of liberty. Logically the decision-maker will have to be the local authority or Clinical Commissioning Group (CCG). But since the work will have to be done upfront, there would be no disincentive to deciding that the acid test was met.
To be covered, the person must be aged 16 or over, lack capacity to consent to the arrangements that are proposed or in place, and be of ‘unsound mind’ within the meaning of Article 5(1)(e) of the European Convention on Human Rights.
Arrangements can only be authorised if a medical assessment has confirmed that the person is of unsound mind. The medical assessment must in all cases have been prepared by someone who meets the requirements set out in regulations; for example, certain types of psychologists or doctors holding a licence to practise, could provide the assessment. The regulations could also be used to specify circumstances in which a ‘specialist’ medical assessment must be carried out; for example, requiring that people with autism should only be assessed by practitioners with qualifications or experience in the treatment of autism.
The draft Bill provides that an assessment must confirm that the arrangements are necessary and proportionate by having regard to either or both of the following matters:
(1) the likelihood of harm to the person if the [proposed] arrangements were not in place and the seriousness of that harm; and
(2) the likelihood of harm to other individuals if the [proposed] arrangements were not in place and the seriousness of that harm.
This must be verified by an independent reviewer and then in some cases an approved mental capacity practitioner. In my view the scope of those two officers’ roles is where controversies will be fought out.
If they think the conditions have been met, an authorisation will be issued.
The responsible body is required to produce a record specifying the detail of the arrangements authorised.
An authorisation would last for up to 12 months, to be renewed for a further period of 12 months and then for further periods of up to three years.
Once residence and care arrangements are authorised, the person deprived of their liberty would be entitled to ongoing rights to advocacy (including appointment of an Independent Mental Capacity Advocate [IMCA] to represent and support them if there is no appropriate person appointed), regular reviews and access to the courts.
There would be statutory authority to deprive someone of their liberty temporarily in emergencies but only to enable life-sustaining treatment or to prevent a serious deterioration in their condition.
Implications for people at risk of
episodes in Assessment and Treatment Units (ATUs)
Protection under the Liberty Protection Safeguards proposals will extend to people with learning disabilities and autism even if they do not present with abnormally aggressive or seriously irresponsible conduct.
To that extent, whether or not one thinks of one’s relative with a learning disability or autism as someone ‘of unsound mind’, the proposals do not change the law as to whether such a person can be sectioned under the Mental Health Act: they cannot be, which is a good thing.
But it is likely to be the more challenging clients who are managed in ATUs. These people are either sectioned under the Mental Health Act, into ATUs, which legally are hospitals and have the legal protections afforded to all compulsorily detained patients or to those who are there voluntarily, as described below. Formally sectioned patients must then be discharged unless an admission under Section 2 is converted to a Section 3 detention for treatment.
There are some, however, who enter voluntarily and can leave, but are often too challenging to be able to be cared for by any other practical arrangements, or are told that they will be sectioned if they try to leave. If, as noted above, they are not detained under the Mental Health Act framework of process and advocacy rights, it is these people who will need the safeguards and be entitled to them, and it will be a particularly tough test of the independence of the Approved Mental Capacity Professional (AMCP) in determining whether arrangements in such places are necessary and proportionate.
AMCPs, the report suggests, MUST approve the arrangements if he or she determines that the conditions for the authorisation of arrangements are met. The AMCP would be expected to consider matters using their own professional judgement rather than simply to consider whether those conducting the assessments could reasonably reach the conclusions that they did. If I was going to be an AMCP, and the impasse holding ‘escape’ up is refusal to increase a person’s budget, the question whether the arrangements are ‘necessary and proportionate’ is what would be worrying me.
The clear intention in the Commission’s report is that AMCPs will not be entitled to tell a council or CCG what to buy, or make a decision that the conditions of the Liberty Protection Safeguards are not met, but simply advise that the package being offered is irrationally or arbitrarily low, and thus indefensible in public law terms.
However, an AMCP will owe an obligation to ensure that their actions do not bring about a state of affairs that is ‘not in accordance with the law’, because an AMCP will be a human rights public body in their own right, and not entitled to bring about an unjustified interference with human rights, which themselves turn on the underlying measure being LAWFUL.
The report is clear that the AMCP can say No, the conditions are not met, but just as with a Best Interests Assessor (BIA) who says no, now, when they don’t think the package is lawful, there is no clarity as to what should then happen. And the fact that the report makes no final recommendation about whether challenges should be to the Court of Protection or a new Tribunal, means that we will all be in the dark a good while longer.
The next step will be for the Department of Health to respond to the Law Commission’s recommendations, which should happen within 12 months. Then a draft Bill of some sort will be scrutinised by both Houses of Parliament, as part of the usual legislative process.
How will the safeguards work?
- To be covered the person must be aged 16 or over, lack capacity to consent to the proposed arrangements and be assessed to be of ‘unsound mind’ within the meaning of the European Convention on Human Rights.
- The assessment can only be carried out by someone who meets the requirements in the regulations; for example, a certain type of psychologist or doctor but, for example, where someone has autism, these could be used to specify a specialist experienced or qualified in autism.
- To be authorised, the arrangements must be verified by an independent reviewer or an AMCP as ‘necessary and proportionate’, taking into account whether the person could be harmed or could harm others.
- Because it can’t be authorised until verified by the independent reviewer or AMCP, alternatives would have had to be considered.
- LPS may now offer those incapacitated individuals entering ATUs on a voluntary basis not detained under the MHA, but who are assessed as too challenging for other care arrangements, some protections but it will be the task of the AMCP to determine whether arrangements are ‘necessary and proportionate’, to have considered alternatives and to ensure the advocacy support.
- AMCPs will only be entitled to advise a council or CCG if they consider the package being offered is irrationally or arbitrarily low, and thus indefensible in public law terms.
- Advocacy support should be ongoing and where a temporary emergency authorisation has been given the safeguards of the process should be followed for a longer term authorisation.
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