Liberty Protection Safeguards – a parting holiday observation

As I leave the shed for a wee while, I have been reflecting on recent social media activity around the Liberty Protection Safeguards.   Reasonable people have reasonably different views about them: see, for instance, the briefing prepared by Lucy Series,[1] and the observations of District Judge Eldergill.  And I would not be faithful to my Law Commission roots if I did not observe that there are significant differences between the proposals advanced by the Law Commission (including as they did provisions for a significant mid-life upgrade of the MCA alongside deprivation of liberty) and those enshrined in the Mental Capacity (Amendment) Act 2019.

But over the holiday period (for those able to have one), it is perhaps worth reflecting on the fact that in the absence of any statutory reform:

1. Tens of thousands of people have no access to the DoLS safeguards in care homes and hospitals because local authorities are unable to discharge their functions in a timely fashion, meaning (1) those people have no support from an RPR or an IMCA; (2) they have no right to non-means-tested legal aid to challenge their detention; and (3) those providing care to them are on thin legal ice balancing whether it is worse unlawfully to detain or to discharge the person to a risk of harm (or worse).
2. Tens of thousands of people have no access to the DoLS safeguards because they are too young or in the wrong place, meaning (1) those people have no support from an RPR or an IMCA; and (2) if and when public authorities do manage to put their cases to the court for authorisation, very many of those people have to pay for the privilege of taking part in proceedings to authorise their detention because non-means-tested legal aid is not available.
3. Section 4B MCA has not been amended so as to enable deprivation of liberty in an emergency, leading to continued uncertainty as to the steps that can be taken to secure life and limb in (for instance) A&E settings.

It might be thought that it is deeply troubling that – with honourable exceptions – this seems to be a matter which simply doesn’t seem to bother anyone.

———-

[1] Although Lucy is not necessarily to be taken as suggesting that they are perfect.