11th April 2022
Having just read Deprivation of Liberty in the Shadows of the Institution by Dr Lucy Series (which I fully endorse reading!) I am inspired by the compelling debates and insights raised, particularly around the prospective implementation of the Liberty Protection Safeguards (LPS). This has urged me to write the following reflection, which includes views from the vantage point of being a Best Interest Assessor (BIA) working within the remit of the Deprivation of Liberty Safeguards (DoLS) and from a newly formed perspective as a Case Manager within the world of personal injury litigation.
DoLS: A case for reform
The Deprivation of Liberty Safeguards (DoLS) were widely criticised as 'not fit for purpose' particularly in the aftermath of the Supreme Court judgement in 2014 referred to as Cheshire West and the definitive ‘acid test’, which increased the scope of DoLS exponentially.
This left huge backlogs of referrals for Local Authorities to plough through, which was a near impossible task in light of resource constraints, thus leaving thousands of people relentlessly waiting to be assessed.
Further to this, as Dr Series alludes to in her book; the machinery of DoLS comes to a grinding halt when there is no money to facilitate people having individualised support in the community (as an alternative to a care home environment).
A Best Interest Assessor's perspective.
As a result of the issue outlined above, the DoLS process could sometimes feel tokenistic – as if it's almost a 'rubber stamp'. This is because even if a person could be independent in the community, the Local Authority isn't obliged to fund it. But with no private funding the person has no alternative option, so they are deprived of their liberty (in the context of the available options) and this is signed off as being 'in their best interests' and lawful.
Some would question whether these safeguards really protect an individual's right to choice, and freedom to live elsewhere, or whether they are more greatly focused on protecting the liability of the authorities who don't want to have to compensate against large claims for unlawful deprivation (see here for an example).
Furthermore, where is the government funding to avoid these deprivations from occurring in the first place, by securing the availability of good quality support in the community?
The problem with austerity is that it favours care provided within institutions, as it's cheaper.
A silver lining
In honesty, maybe I became a little bit cynical, which is partly why I chose to diverge my career and start a new professional role within the private sector (because sometimes you just need some fresh air).
But I will say this. With the DoLS as a legislative tool, as a BIA I have on various occasions, prompted the Local Authority to review the possibility of community living. Where this wasn't appropriate, I have looked to increase the scope of choices that an individual has within their current care residence, therefore expanding their 'decision space' within that setting and promoting their personal liberties.
This was achieved by the use of DoLS conditions i.e. placing a legal requirement on the care home management to respond to a request (for example to facilitate a certain activity the person might wish to do).
Sometimes it's the little things that make life bearable, so I celebrate that.
Unanswered questions from the LPS
The Liberty Protection Safeguards (LPS) is the forthcoming replacement to DoLS, and is set to eradicate the bureaucracy and inaccessibility of the current framework, aiming to cover all care settings including supported living and private domestic homes. LPS will apply to all those aged 16 and above, who lack capacity to consent to care arrangements that give rise to a deprivation of their liberty.
On the horizon
After a long period of waiting, the government has finally released details of draft codes of practice for the updated Mental Capacity Act. These have caused much debate as to how workable the new framework will prove to be, particularly as the specialist BIA role is vacated and the task of completing the three LPS assessments will be assigned to the registered health and social care professionals who may be already working with an individual, or who may need to be allocated specifically under LPS.
There is the new Approved Mental Capacity Professional (AMCP), but the AMCP will only be involved in specific circumstances – mainly when there is a reason to believe the person is objecting to the arrangements.
This in theory, could be a very good thing, in that it redirects the onus to follow the Mental Capacity Act away from specialist assessors, back towards those already working with a person, increasing the accountability to make sure the incapacitated person's voice is heard; that capacity is formally assessed where relevant and that all options are considered in line with their wishes and a least restrictive approach. This should all be done before any decision to provide restrictive care is made.
But these legal obligations are nothing new; they are already in place via the Mental Capacity Act 2005. Though sadly the MCA is not always adhered to within health and social care service provision, even following CQC inspections (see here for an example discussed on Twitter). This makes a strong case for a more robust framework which re-emphasises that the business of promoting rights and choice under the MCA, is not limited to just Best Interest Assessors, or even Social Workers.
Unanswered questions
We’ve learnt about the proposed changes to MCA and the Code of Practice but there are several major questions that are yet to be answered
Given the extent of the prospective changes (not only to roles and processes but also a cultural transformation across all sectors), will the LPS be effective?
How will the value of LPS be measured? Will it simply be by the number of authorisations put in place, or will there be an exploration of the person's subjective experience of having LPS in place in terms of what difference it makes to their daily life? Will there be a discernible or meaningful effect felt?
How will LPS be applied to the wider community, even in family homes?
Deprivations of liberty in the family home
When considering these unanswered questions, there remains for me one outstanding elephant in the room, namely: deprivation of liberty in the family home.
It is quite understandable that for most people the mere idea of being deprived of liberty in your own home is somewhat taboo, and the legal concept of DoLS/LPS doesn’t quite sit comfortably in the family home context.
Indeed, some may wonder, what is actually being achieved by the state invading the private family domain? What does this achieve other than redefining family care within the legal language of institutions, so that it may be governed as such?
This really is a really contentious issue, and as the case of ‘AEL‘ shows what kind of message is received by a family member when his daughter was judged to be deprived of her liberty in their family home. But more importantly, I wonder what effect the Court of Protection proceedings had on his daughter? Did she feel any benefit?
I do agree with Dr Lucy Series in that it feels transgressive insofar as it tars family life with the same brush as 'institution' and realistically, where can a person truly be free if they are living in their own home with family?
A Case Manager’s perspective
I recently began a new role as a Case Manager within personal injury litigation, where my client base would predominantly be those with acquired brain injury seeking a substantial legal claim (or following settlement).
Given this new role, I am now more distinctly aware of situations where restrictive care arrangements may be in place in a private home, but where support requirements might not have been assessed or funded by the local authority, or health commissioning.
The care may be funded entirely from the proceeds of catastrophic injury compensation or may be fully provided by the family.
The 'acid test' may well be met in some of these situations, without the knowledge of the Local Authority, yet because of the involvement of the court (due to the claim, or due to the appointment of a legal professional as a financial deputy), the arrangements would still be 'imputable to the state', thus engaging the need for consideration of an independent check of the arrangements. See here for a summary of relevant case law.
LPS in practice
LPS as a streamlining tool
As it stands, any Deprivation of Liberty in the community – which cannot be prevented by seeking less restrictive care arrangements – would need to be reviewed further by an application to the Court of Protection.
With the forthcoming changes to LPS, the responsibility to review and authorise a 'deprivation of liberty' in the community will lie with the Local Authority or Local Health Board (if the care is commissioned by health).
LPS presents solutions to various predicaments. The three LPS Assessments are intended to be woven into the Care Act Assessment or NHS Assessment processes seamlessly, typically without any need for further assessment (other than a pre-authorisation review which may potentially be done as a tabletop exercise if there are no objections).
This then becomes a less onerous task than the labour-intensive six DoLS Assessments as currently completed by a BIA and Mental Health Assessor, meaning more people will be afforded the safeguards of representation and route of appeal whilst the Court of Protection is free to deal with only the most complex of cases that require such an intense level of scrutiny.
Similarly, it is less burdensome for those who don't want to be involved in duplicate assessments, time and time again, when they may be 'happy' within their arrangements. (This is particularly cumbersome when the person may have lived for years in their own home with familiar carers and they may not present as objecting).
And of course, receiving an authorisation for Liberty Protection Safeguards is a more palatable euphemism than DoLS, certainly for those cared for in their own homes as opposed to being 'deprived of their liberty' (sometimes by their own family).
But a gilded cage is still a cage.
And the question remains: how can we truly tell if a person is or isn't objecting – especially when communication is severely limited? There is also an ongoing concern that carers / providers may misinterpret or mitigate a person's objections which would deny them access to an AMCP and more rigorous assessment.
This is a problem. But it's also a problem that a majority of the current community DoLS applications are ‘stayed’ or some may follow the Re X process through the Court of Protection (as non-objecting).
At least by assessing significantly more people in the community through LPS, more people will have access to an external check on restrictive care practices and will have specific representation in place to consider and act on any objections / issues raised around personal rights to liberty.
LPS as a pragmatic tool
Sometimes a person/family may not see a need to be assessed under the Care Act, either because their needs are already met privately or because they have personal funds which exceed the financial threshold (so they wouldn't get any state contributions).
But what if the family/carers /private support workers are caring for someone in a way that may deprive them of their liberty? The carers may be trying to do their best to support the person, but there could be an overarching mentality which is risk-averse and over-protective, there may be evidence of highly restrictive care, such as locking the person in, or not allowing them opportunities to go out and do more ‘risky’ activities when they want to.
It may simply be that the carers are less educated on what is required under the MCA which leads to the person becoming consistently constrained from experiencing any kind of decision space in their own lives, and they may genuinely want different things to what their carers think is 'safe'.
These situations may be rare, or maybe they are more common, and we just don't know about them? In many care settings there isn't always a dedicated oversight on whether the MCA is followed.
While the CQC would normally oversee agency-provided care, it only gets involved if there is a need for regulated support, such as personal and intimate care. It doesn’t get involved with privately employed support workers who don’t provide personal care.
In these cases, the LPS presents a practical mechanism which bestows a specific duty on the Local Authority to work with a person and their family and review restrictive care arrangements (where the criteria for the acid test is met).
LPS as a dangerous tool?
Lady Hale made it very clear in her Supreme Court judgement, that a Deprivation of Liberty can be defined in any setting, including a family home. So, the machinery may be put to work there more frequently under LPS, though it will undoubtedly work differently without the formal care planning, record keeping and monitoring that you find in an institutional type of care setting.
And what about the AMCP role in terms of taking necessary actions to increase personal liberties within a family home?
There would need to be some very sensitive conversations held as there is a real risk of sabotaging relationships and creating conflict with families. But I would hope that many families would welcome support from professionals working under the remit of LPS, as long as the professional had the necessary skills to engage with a family network, respecting their cultures and traditions, whilst also holding the individual's wishes at the heart of their efforts around supported decision making and best interest decisions.
Empowerment isn't about striving for independence and 'normalisation'; it must always be about walking in the shoes of the individual, understanding what's actually important to them and helping them to achieve those things in the safest way possible, within their systemic network of support.
Final thoughts
At this point I don't think anyone has the answers to how LPS will work or whether it will be effective. Most of it, as they say, will inevitably 'come out in the wash'. I suspect a flutter of litigation may occur following implementation of LPS, especially within private settings, which may then prompt further updates to the MCA codes.
Whether LPS is the right tool for the private domain, remains an unanswered question. The diplomatic answer is that any tool is better than no tool, but it must be handled with awareness and caution, as it could cause harm in the wrong hands.
Therefore, those involved in LPS, from support workers on the ‘coal face’ to the assessors, reviewers, authorisers, IMCAs and AMCPs; they all need to be masters of their craft when safeguarding liberty, listening to what the person actually wants and aiming to promote their choices and liberty, on both micro and macro levels.
A comprehensive programme of LPS training and clear guidance is essential, but also there desperately needs to be funding resources to ensure that where a person wishes and could safely be supported in a less restrictive way, there is the realistic means of achieving that. Without such resources, LPS may just become another tick box exercise, proclaiming to be 'person centred' and 'human rights based'.
Using the mechanics of LPS, let's make those buzz words mean something.
About the author
Eleanor Tallon is Case Manager and Independent Social Worker/ Best Interest Assessor. She can be found on LinkedIn. She also Tweets @Eleanor_Tallon
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