Liberty Protection Safeguards: DOLS and Re X still here until April 2022

Kerry Short looks at the implications for local authorities of the Government’s recent announcement of a delay to the implementation of the Liberty Protection Safeguards.

The Liberty Protection Safeguards (LPS) is the new regime to authorise deprivation of liberty of an individual in order for them to receive care and/or treatment where that individual does not have capacity to consent. It was introduced in the Mental Capacity (Amendment) Act 2019 and intended to be implemented from October 2020. The headline changes are:

• The same scheme for all settings;
• Applicable to individuals aged 16 and over;
• Responsible Bodies will replace Supervisory Bodies, sharing the load again between local authorities and NHS Trusts/Clinical Commissioning Groups;
• Reduced number of assessments (from six to three);
• New role of Approved Mental Capacity Professional and expanded role for Independent Mental Capacity Advocates.

As time marched on and there were still no draft regulations or Code of Practice in sight, it became increasingly apparent that October 2020 was less likely to see the start of the new regime, and that was before the pandemic hit.

Those of us working in this area of the law knew that implementation had to be put back, but what we did not know until a few weeks ago was for how long. We now know the new implementation date is April 2022, just under two years away. So, what does that mean for local authorities?

DOLS (Deprivation of Liberty Safeguards)

The DOLS scheme will remain in place for those people in care homes and hospitals, and the battle to correctly triage and get on top of backlogs of applications goes on. As will s21A proceedings in the Court of Protection, a necessary access to justice for the individual but often a time-sapping and costly experience for the respondent local authority as the Supervisory Body whose authorisation is being challenged.

Re X applications

For settings other than care homes and hospitals, authorisation has to be obtained by the local authority applying to the Court of Protection (COP) for a relevant order. These cases are also likely to be experiencing a backlog with local authorities still dealing with the sheer numbers following the lasting impact of the Cheshire West judgment. 

There is the streamlined Re X process available for uncontentious cases, but even those can involve considerable work – rightly of course for the individual whose liberty is being, or is to be, deprived, but an added drain on limited professional time, particularly in the current crisis.

There are several specific tasks required in order to complete a COPDOL11, and a stumbling block can be obtaining the necessary medical evidence to support the application. Then there are those cases that are not suitable for the streamlined procedure and will require the full COP1 application and court attendance.

Unlawful deprivation of liberty

Depriving someone of their liberty without lawful authorisation – either through DOLS or a court order – leaves a local authority vulnerable to being sued. At worst, this can lead to considerable compensation and reputational damage, a memorable example being that of Essex County Council and the 91-year-old war veteran locked in a dementia unit and separated from his cat Fluffy (I mention the cat as that’s what a lot of people remember this case by). £60,000 damages for breach of the man’s human rights and a great deal of bad publicity.

Thankfully not every unlawful deprivation of liberty will be this serious, some will not be challenged at all and others will be procedural only in nature and not attract compensation. It remains, however, a significant risk for local authorities that they no doubt very much hoped to be in the past later this year.

LPS readiness

Many social care and legal professionals working in local authorities will have been taking advantage of the considerable offering of training on the Liberty Protection Safeguards over the last year or so in preparation for implementation this October. Some will no doubt retain the knowledge acquired, remain in this area of work and be able to simply refresh that knowledge and adapt it when we finally get sight of the draft regulations and Code of Practice for consultation.

There will however inevitably be those who will need to undertake further training nearer implementation, both because of the passage of time and because we only know so much until those draft documents are made available by the Government. There may, therefore, be an impact on staff time in undertaking further training so that local authorities can ensure they are LPS-ready.

Kerry Short is Head of Community Care at Invicta Law. She can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it. or by telephone at 03000 415747.