How can the care sector be ready for LPS?

Saara Idelbi and Jonathan Landau, barristers at 5 Essex Court, discuss the issues surrounding deprivation of liberty in social care settings.

The Liberty Protection Safeguards (LPS) is the framework that will replace the Deprivation of Liberty Safeguards (DoLS). The scheme is due to come into force in April 2022, though it is likely that there may be some further delay. Meanwhile, it may be sensible for managers who will be implementing the provisions to consider the resource implications.

DoLS was the framework that was introduced to fill the ‘Bournewood Gap’ – the absence of formal legal procedures to authorise the deprivation of liberty of persons who were compliant with their care.

The DoLS scheme faced a number of challenges. From the outset local authorities struggled to meet the onerous deadlines for carrying out assessments and granting authorisations, particularly as the maximum duration for authorisations is 12 months.

Then, in 2014, the Supreme Court decided the case of Cheshire West holding that the litmus test for deprivation of liberty was that a person is under continuous supervision and control and is not free to leave.

Previously, it was thought that a person was not deprived of their liberty if the restrictions upon them were no greater than was necessary for persons with their characteristics. Cheshire West greatly increased the numbers of applications adding further pressure to the system.

Furthermore, DoLS only applies to hospitals and care homes which means that any deprivations of liberty in other settings require an application to the Court of Protection. In the case of Re X, a streamlined process was introduced in respect of such cases where the applications were not controversial.

However, that added further burden on local authorities to deal with such applications including considerable legal costs. In 2019, the Supreme Court held in the case of Re D that that duty applied in respect of children aged 16 and 17 even if those with parental responsibility consent to the arrangements.

The LPS is intended to address these issues, and others. There are three conditions for authorisations (down from six assessments under DoLS), and, crucially, authorisations may be renewed, initially for a further 12 months and thereafter for up to 36 months.

The scheme will apply to all settings, including people’s own homes, and has been extended to 16- and 17-year-olds.

How will the new system impact on providers and social service departments? Providers will welcome the development that the provision enabling local authorities to require care home managers to arrange assessments will not be implemented when LPS comes into force. They will be unlikely to see a great change to the resources required for DoLS.

As regards local authorities, the DHSC published an impact assessment suggesting that the best estimate of the current cost of the deprivation of liberty regime (including those cases that require applications to the Court of Protection) is about £2.5 billion annually.

In contrast, the assessment suggests that the new regime will only cost £389 million annually. However, quite properly, that assessment came with a red-letter warning that the detail of the scheme remains incomplete, and the assessment must accordingly be treated with caution.

Of particular note to social services departments, of the £2.5bn mentioned above, nearly £1bn is accounted for by legal costs much of which will be associated with Court of Protection applications.

It seems likely that at least some of the activity that is currently being conducted by local authorities’ legal teams will transfer to social services departments.

In addition, a legislative framework for deprivation of liberty in domestic settings may be expected to result in more cases coming to light. Managers should accordingly be alert to these issues when negotiating budgets.

While the overall costs of LPS may be lower than the status quo, that may not apply across the board and social services (both adults and children) may bear the brunt. They should also consider the Code of Practice and regulations carefully when they are finally published to identify any costs that the DHSC did not have an opportunity to consider in the impact assessment.

Broadly, the LPS is to be welcome as it represents an attempt to improve on the deficiencies of DoLS. However, at a time of unprecedented demand on local authorities’ resources, managers and directors of social service departments must ensure that they are provided with the funds to implement the scheme without diverting money from funding care.

After decades of delay, there is finally the kernel of a plan for social care that will include increased funding through a rise in National Insurance contributions. Local authorities will want to ensure that the funds are not lost in the legalities of authorising care, rather than funding care.

Photo Credit – Headway