Three important developments, on different timelines, have occurred in relation to deprivation of liberty.
The first development is the publication on 23 October by the CQC of their annual State of Care Report, which includes a specific section under ‘groups of people of concern’ on deprivation of liberty. It is a long section, but I reproduce the opening paragraphs here:
We have raised serious concerns about the safeguards and the need for system-wide reform for a number of years. Applications to authorise the deprivation of a person’s liberty have continued to increase significantly over the last decade – far beyond the levels expected when the safeguards were designed. This puts pressure on local authorities, who are responsible for authorising standard DoLS applications, and often results in lengthy delays in processing applications. In turn, it affects health and care staff, who need to balance keeping people safe with protecting their rights while waiting for an application to be granted.
People in need of a DoLS authorisation are often among those least likely to have their voices heard. In a system struggling to cope, many people subject to DoLS authorisations are not having their rights upheld in the way that the system intended. In our last State of Care report, we called for urgent action to ensure that the system does not fail people in the future. We remain concerned that the current system is not effectively protecting the rights of many people who use health and social care services. Added to this, the level of understanding among staff of how and when to apply the safeguards, and the need to review restrictions regularly to ensure they remain relevant, continues to vary across both adult social care and hospital settings.
I also reproduce the section on the Wider Policy Landscape to set out CQC’s perspective on future developments:
The wider policy landscape in health and social care is changing, and this could have implications for the DoLS system. The Mental Health Bill is currently progressing through parliament and will bring about important safeguards for people who are detained under the Mental Health Act (MHA). This could have a knock-on effect on the DoLS system.
In our recent Monitoring the Mental Health Act report, we raised concerns about autistic people and people with a learning disability staying in hospital for prolonged periods when this does not meet their needs. We welcome the ambition to change this situation, which is reflected in the proposals of the Bill to exclude being autistic or having a learning disability from the scope of civil detention under the MHA. This means that being autistic or having a learning disability alone cannot be a reason to detain a person for longer than 28 days.
However, without suitable community-based alternatives, there is still a risk that people may be detained under other legal frameworks, such as DoLS, placing additional pressure on an already struggling system that is not always effectively protecting people’s rights.
Another pending area for change is the move from DoLS to Liberty Protection Safeguards (LPS). Introduced through the Mental Capacity (Amendment) Act 2019, LPS were intended to replace DoLS. They were designed to be more streamlined than DoLS, operating alongside care planning. It was intended to ensure that people could access key legal protections more quickly. It also extended to 16 and 17-year-olds and those deprived of their liberty in settings other than care homes and hospitals.
The implementation of LPS has been postponed multiple times: first in 2020 because of the COVID-19 pandemic, and again in 2023 it was paused without giving a reason. In successive State of Care reports, we have expressed concerns about implementation delays and uncertainty around the future of the LPS.
Chronic, longstanding issues with the current DoLS system mean many people are still not getting the important safeguards they need, and many of the issues we raise in this report are not new. We welcome the government’s recent announcement that it intends to take forward the consultation on LPS. We recognise that the sector will need time, resources and support to prepare for the introduction of the new system, and we will work with key stakeholders as part of this process. We look forward to the publication of an updated Code of Practice, as clear guidance will help health and social care staff with the practical application of the MCA and is essential to support the implementation of the reforms. During this process, it will be vital that the human rights of people affected by the current DoLS system remain a focus.
The second development, noted in the CQC report, is the announcement on 18 October by the DHSC that it is consulting on the Liberty Protection Safeguards. I reproduce the relevant text of the press release here:
A consultation on the Liberty Protection Safeguards will be launched in the first half of next year, seeking the views of those affected such as families, carers and practitioners including social workers, nurses, psychologists and occupational therapists. It will be jointly run by the Department of Health and Social Care and the Ministry of Justice.
[…]
The responses from this consultation will be used to inform a final Mental Capacity Act (2005) Code of Practice, which will be laid in Parliament.
The revised code of practice will incorporate changes in case law, legislation, organisational structures, terminology and good practice since 2007, addressing critical challenges in the existing Deprivations of Liberty Safeguards framework.
The last time the Mental Capacity Act Code of Practice and Liberty Protection Safeguards were consulted on was in 2022, which did not lead to any changes.
I have a page on the Liberty Protection Safeguards here, which I have not materially updated since matters were paused before in 2023; it should be read subject to that caveat, but provides an overview of some of the features of the LPS (as well as a video about what to do at present).
The third development is the judgment now awaited from the Supreme Court in the Attorney General for Northern Ireland’s reference case concerning the definition of deprivation of liberty, heard from 20-22 October (in which the DHSC also intervened, as noted in the press release relating to the LPS consultation). The written cases for the parties can be found on the Supreme Court page for the case, as can recordings of the hearing. We do not have a date for judgment. As I was involved in the case, I will not be commenting on it here pending the judgment.
