Emily Mouland
Legislation aimed at streamlining cases of people who may lack the mental capacity to consent to their care arrangements should help to ease the volume of current court applications, according to a Shropshire trainee solicitor.
The Government is looking to replace the present Deprivation of Liberty Safeguards (DOLS) legislation with a new Liberty Protection Safeguards (LPS) Bill following criticism from the Law Commission that DOLS are not meaningful for disabled people, their families or carers.
Emily Mouland, a trainee solicitor on Lanyon Bowdler’s Court of Protection team, said the new Act was originally intended to come into force last April but has been delayed by Government due to the complexity of the reforms, with consultations needing to be carefully considered before any final decisions can be made.
“Where care arrangements involve ‘continuous supervision and control’ of a person, and they are not free to leave their care setting, they are said to be deprived of their liberty,” she said.
“There are occasions where, due to disability, injury or condition, a person may lack the mental capacity to consent to these arrangements.
“Where this is the case, the person’s local authority is empowered to authorise arrangements that deprive the person of their liberty to ensure they continue to receive the care or treatment they need.
“This authorisation is currently done through DOLS. However, due to strong representations from the Law Commission and an increase in referrals, DOLS are set to be replaced by the LPS.
“The aims of both are, at their core, very similar but it is hoped that the LPS will be a better fit for the greater volume of applications now being received regarding the care arrangements for those who lack capacity.
“The aim is to create a simplified and accessible framework to ensure the authorisation for care plans operates effectively, whilst still placing the person who lacks capacity at the centre of decision-making.”
Emily added that a key difference is that the LPS will apply to 16 and 17-year-olds, whereas DOLS only apply to persons over 18. Currently, court authorisation is required where measures are proposed to restrict the liberty of a child.
She said: “Under DOLS, the local authority has to authorise arrangements for a person who lacks capacity, whereas, under the LPS, measures can be approved by a
‘Responsible Body’, which encompasses the NHS organisations, the Clinical Commissioning Group, and the local authority the person is under.”
Emily said for a person to be deprived of their liberty at present, it must be shown that said person is suffering from a recognised mental disorder, that they lack capacity to decide on proposed arrangements for themselves, and that the proposed restrictions would be in the person’s best interests.
“Under the LPS, three assessments will be required for arrangements that restrict liberty to be authorised,” she added. “These are a capacity assessment to determine whether the person is able to make decisions for themselves about what they need, a medical assessment to establish whether they have a mental disorder and, finally, proposed arrangements will be examined to establish that they are necessary.
“Should the person, their family or carer wish to challenge a plan of care, they can continue to do so through the Court of Protection.”
