LocalGovernmentLawyer Adult Social Care 2017 17 The arrangements that can be authorised (Chapter 7) Whereas the DoLS only apply to hospitals and care homes, the Liberty Protection Safeguards would also apply to other settings, for instance supported living, shared lives and private and domestic settings. In fact the new scheme is not limited to specific forms of accommodation or residence; it encompasses any situation where Article 5(1)(e) is potentially engaged. Authorisations could be given to enable a person is to reside in one or more places, or to receive care or treatment at one or more places. The specific arrangements that may be authorised are: • arrangements that a person is to reside in one or more particular places; • arrangements that a person is to receive care or treatment at one or more particular places; and • arrangements about the means by which and the manner in which a person can be transported to a particular place or between particular places. 16 and 17 year olds (Chapter 7) Whereas the DoLS apply to those aged 18 and over, the Liberty Protection Safeguards would apply to people aged 16 and over. Currently, unless detention under the Mental Health Act is appropriate, a court application is required to authorise a deprivation of liberty of a 16 or 17 year old. The Law Commission argued that this situation is unnecessarily onerous and expensive for the State (especially NHS bodies and local authorities, which are often expected to bring cases to court), and potentially distressing for the young person and family concerned. The report also points to evidence that public authorities are not currently taking cases to court when they should. The responsible body (Chapter 8) The Liberty Protection Safeguards replaces the “supervisory body” with the “responsible body”, which is charged with authorising arrangements that give rise to a deprivation of liberty. The Law Commission argued that there should a stronger link between the commissioning of the arrangements and consideration of whether deprivation of liberty is justified. In other words, the body responsible for arranging care or treatment should (to the extent that this is practicable) be responsible for considering requests for authorisations, commissioning the required assessments and giving the authorisation. The Liberty Protection Safeguards provides for the following three criteria to be applied to identify the responsible body in any case: • if the arrangements are or proposed being carried out primarily in a hospital, the responsible body is the “hospital manager” (which would in most cases be the trust that manages the hospital in England or the local health board in Wales); • otherwise, if the arrangements or proposed arrangements are being carried out primarily through the provision of NHS continuing health care, the responsible body is the relevant clinical commissioning group in England or local health board in Wales; and • otherwise the responsible body is the “responsible local authority” (in most cases this will be the authority that is meeting the person’s needs or in whose area the person is ordinarily resident). The conditions for an authorisation (Chapters 9 & 10) The Liberty Protection Safeguards set out the following conditions, which must be met in order for the responsible body to authorise arrangements: • the person lacks capacity to consent to the arrangements which would give rise to a deprivation of the person’s liberty • a medical assessment has confirmed that the person is of unsound mind within the meaning of Article 5(4)(1)(e) of the ECHR) • the arrangements are necessary and proportionate by having regard to the likelihood of harm to the person and/or other individuals if the arrangements were not in place and the seriousness of that harm; • The required consultation has taken place (for instance with friends and family members) • The authorisation would not conflict with a valid decision of a donee or a deputy as to where the person should reside or receive care or treatment. Independent review (Chapter 10) The Liberty Protection Safeguards require an “independent review” to be carried out in order to confirm that it is reasonable for the responsible body to conclude that the conditions for an authorisation are met, or (in certain cases) to refer the case to an Approved Mental Capacity Professional. No one who is involved in the day-to-day care or treatment of the person can act as the reviewer. In cases which are not referred to an Approved Mental Capacity Professional the reviewer is required to certify personally that it is reasonable to conclude that the conditions for an authorisation are met. They must review the information available to the responsible body and determine whether or not the responsible body’s decision to authorise arrangements is a reasonable one to come to on the basis of that information. The Approved Mental Capacity Professional (Chapter 10) The Approved Mental Capacity Professional is a new role which is intended to build upon the existing best interests assessor role. The Liberty Protection Safeguards requires a referral to be made to an Approved Mental Capacity Professional if: • it is reasonable to believe that the person does not wish to reside or receive care or treatment at a particular place; or • the arrangements are regarded as necessary and proportionate wholly or mainly by reference to the likelihood and seriousness of harm to others. The Law Commission argues that there is a compelling case for replacing the DoLS. It refers to “widespread agreement” that the DoLS are overly technical and legalistic, and “too often fail to achieve any positive outcomes for the person concerned or their family”.