(i) Change the terminology!
Terminology matters. It matters to those with disability, to their family and friends, to care providers and to those practitioners responsible for acting lawfully. Neither the terms ‘deprivation of liberty safeguards’ nor ‘liberty protection safeguards’ are contained in legislation. They are in fact merely labels to describe a legal procedure. English law has always safeguarded the protection of liberty and the Mental Capacity Act 2005 already provides administrative and judicial liberty-protecting safeguards. You might say we already have “administrative LPS” (local authorities/ health boards safeguarding adults in hospitals and care homes) and “judicial LPS” (Court of Protection judges safeguarding young people and adults in any care setting).

There is no legislative reason therefore why DoLS 2.0 could not be renamed as “LPS”. Potential confusion could be addressed by updating the Code of Practice. After all, the work has already been done to improve the MCA-core content in the draft version. There is already a DoLS Code which, to reflect “administrative LPS”, can at the touch of the CONTROL + H button easily replace ‘deprivation of liberty’ with ‘liberty protection’. And it would not be that difficult to add new chapters for “judicial LPS”. Given how much time and effort everyone has put into LPS, the least the government could do in this Parliament is to update the Codes of Practice.

(ii) Supply the demand
DoLS was not designed for the level of demand for legal safeguards that exploded onto its scene after the Cheshire West decision in 2014. In justified desperation, people will rightly call for more resources to try to make it work. We need more assessors, more authorisers, more advocates, more monitors of authorisation conditions (worth having if you have none), and more COP judges to reduce delays with COPDOL11 applications. But what other enhancements could also be made to help meet the demand?

Broadly speaking, there tends to be three types of case where liberty-protecting safeguards are required: ‘the classic’, ‘the unhappy’, and ‘the stable’. The classic cases are where someone is being confined somewhere they really should not even be (e.g. in a care home rather at home with a care package). The unhappy are those situations where the person is in the ‘right’ type of place but changes to the arrangements are needed to make them happier. And the stable are those in the ‘right’ place with the ‘right’ arrangements but technically confined because “a gilded cage is still a cage”.

With limited resources to supply the demand, the overriding objective in this DoLS 2.0 world we now face is, with a side-eye to the Court of Protection Rules, how to deal with all three cases justly and at proportionate cost, having regard to the MCA principles. Dealing with a case justly and at proportionate cost could be said to include, so far as is practicable:

1. ensuring that it is dealt with expeditiously and fairly;
2. ensuring that P’s interests and position are properly considered;
3. dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;
4. ensuring that those involved are on an equal footing;
5. saving expense;
6. allotting to it an appropriate share of the supervisory body/Court of Protection resources, while taking account of the need to allot resources to other cases; and
7. monitoring compliance with authorisation conditions, and reviewing recommendations.

After all, what is sauce for the Court of Protection goose is sauce for the supervisory body gander. For they both have the same responsibility to safeguard the protection of liberty, just in different care settings.

So what changes could be made to fulfil this new overriding objective of “administrative LPS”? The first is having the confidence to rely on good existing evidence for new authorisations. According to MCA Sch A1 para 49, an existing assessment carried out within the last 12 months can be re-used as an ‘equivalent assessment’ if there is no reason why it may no longer be accurate. If I had dementia last time, chances are I still have it. If this was a care home last time, we do not need a medic to confirm that this is still a care home. Indeed, there is no need to reassess any of the six DoLS criteria (so-called ‘qualifying requirements’) if there is an accurate existing assessment.

Being able to identify when existing evidence can be relied upon for the next authorisation may be an art, but the current legislative option to do so provides a way to avoid unnecessary cost and ensure appropriate cases are dealt with expeditiously and fairly. This would certainly reduce the need for mental health assessors and no doubt an ADASS Form 4B could be created (if Lorraine Currie has not already written one!) to capture this to run alongside the existing Form 3B. And for those supervisory bodies that do not already use Form 3B, they may now well wish to consider doing so.

(iii) Improve the forms
Speaking of forms, those used for “administrative LPS” in the new DoLS 2.0 world can no doubt be speedily simplified and updated to reflect best practice and case law developments. And some thought could be given to the authorisation itself. In times gone by, only the most senior judges (Tier 3) dealt with judicial LPS cases. Nowadays, any nominated Court of Protection judge can do so and whether a case is scrutinised by a Tier 1, 2 or 3 judge depends upon the complexity of the issues. Conversely, most supervisory bodies no doubt still use some of their most senior staff to scrutinise assessments which can cause delay. Senior staff may still be justified for the ‘classic’ cases, but may not necessarily be for the ‘unhappy’ and ‘stable’ ones.

(iv) Expand the authorisers
There is nothing in law that determines who undertakes this role. Indeed, the role is not even mentioned in Schedule A1. It is the ‘supervisory body’ that gives a standard authorisation and it decides who does so. Clearly, they need to know their stuff to provide an appropriate level of scrutiny, and have a degree of independent thinking to reduce the risk of bias or conflict of interest. But no more than that. Advanced practitioners or best interests assessors, for example, could undertake the role. Not, of course, in relation to their own assessments but in those situations where they are able to think and act independently of the assessor.

(v) Embed periodic reviews
Changes could also be made to the standard authorisation without any legislative amendments. Its length (up to a 12-month maximum) is determined by the person’s best interests. Rather than giving a shorter authorisation to ensure a BIA gets back on the scene, a longer authorisation could be given but with robust interim review arrangements. Authorisation conditions could, for example, require the managing authority to carry out a programme of care planning reviews, with recommendations targeted at the relevant health/social care professionals.

Effective monitoring of such conditions would provide the supervisory body/BIAs with greater confidence to go longer with the safeguards. Recommendations also need to be better communicated and checked because they can make a real difference. Fundamentally, a BIA may have more confidence to go long if the supervisory body’s duty to monitor conditions is working effectively, there are interim reviews required, coupled with an efficient Part 8 review process to enable representatives to flag up ‘problem cases’ requiring attention. Such an efficient and effective use of resources could provide more people with enhanced safeguards and reduce the need for legal proceedings. All these measures are already provided for; they just are not being used.

(vi) (Avoid?) advance consent
Finally, there is much learning from the draft Code of Practice that we can apply to “administrative LPS”. Whether anyone will attempt to stretch the concept of advance consent to avoid Article 5 safeguards altogether remains to be seen. Only a capacitous forward-thinking care home resident or mental health patient and a test case would determine whether that is actually lawful.

(vii) Empower
Most people subject to DoLS we anticipate do not choose their own representative but should be better empowered to do so where possible. The draft Code suggests that the relevant information for this decision includes, but is not limited to:

• What a deprivation of liberty means and the impact on the person;
• The role of the RPR and what is expected from the individual who undertakes the role;
• How to carry out the role, such as meeting the person regularly and challenging decision makers;
• RPR’s rights for support, including from an IMCA; and
• Information on the person and RPR’s rights to challenge an authorisation and how to challenge.

This is certainly too demanding and more thought needs to be given to the salient details for this relatively simple decision. More people can no doubt be better-enabled to choose their own representative. And a renewed effort should be made to improve the giving of accessible information to people about their rights and safeguards.

(viii) Consider MHA 1983 s.17(3)
A little niche, but for those liable to be detained under the Mental Health Act 1983, the draft at paragraph 22.80 highlighted how the responsible clinician “should consider first whether it is possible for that deprivation of liberty to be authorised through the use of section 17(3)”. Even had LPS been implemented, the interface with the MHA would have remained. But greater clarity like this on these sorts of issues could help now.

(ix) Acute hospitals
The same is particularly true in relation to acute hospitals where a significant demand for safeguards is made in circumstances where the patient is discharged before any assessors reach the scene. The current DoLS Code importantly states:

“6.3 However, an urgent authorisation should not be used where there is no expectation that a standard deprivation of liberty authorisation will be needed. Where, for example:

• a person who lacks capacity to make decisions about their care and treatment has developed a mental disorder as a result of a physical illness, and
• the physical illness requires treatment in hospital in circumstances that amount to a deprivation of liberty, and
• the treatment of that physical illness is expected to lead to rapid resolution of the mental disorder such that a standard deprivation of liberty authorisation would not be required,

it would not be appropriate to give an urgent authorisation simply to legitimise the short-term deprivation of liberty.
6.4 Similarly, an urgent deprivation of liberty authorisation should not be given when a person is, for example, in an accident and emergency unit or a care home, and it is anticipated that within a matter of a few hours or a few days the person will no longer be in that environment.”

Perhaps a significant number of patients in these acute physical ill-health scenarios are unlikely to be deprived of their liberty because of the Ferreira decision, which the draft Code describes as follows:

“Medical treatment for physical health problems
12.77 A deprivation of liberty will not occur if the person is treated for a physical illness and the treatment is given under arrangements that are the same as would have been in place for a person who did not have a mental disorder. In other words, the restrictions on the person are caused by physical health problems and the treatment being provided. The root cause of any loss of liberty is the physical condition, not any restrictions imposed by others (for instance health and care professionals). This approach should be applied to any form of medical treatment for physical health problems and in whatever setting the treatment is being delivered. It should not be limited to hospital settings, but could include any setting where medical treatment is being provided.”

One can well understand why acute hospitals are routinely triggering urgent authorisations to avoid the risk of legal liability. But if staff can develop the confidence to distinguish ‘a Ferreira’ (no safeguards required) from a ‘DOL’ (safeguards required), that would avoid unnecessary requests being made.

The way forward
In conclusion, LPS-not-to-be would have provided more people with watered down safeguards whereas the LPS-as-is (aka DoLS 2.0) provides better safeguards but the challenge is enabling more people to secure them. They provide statutory time limits to prevent arbitrary detention. Everyone is entitled to an independent periodic check, whether from a BIA or a judge. The focus now should be on how best to deal with the demand justly and at proportionate cost. We should take our steer from the factors in the Court of Protection Rules and better enhance the use of current resources, whilst justifiably demanding more from the change in government priorities.