On 9th February the Joint Committee on Human Rights launched an inquiry into the Right to freedom and safety: Reform of the Deprivation of Liberty Safeguards. The Committee issued an open call for evidence from interested parties. The following is POhWER’s response to the points raised:

Whether the Law Commission’s proposals for Liberty Protection Safeguards strike the correct balance between adequate protection for human rights with the need for a scheme which is less bureaucratic and onerous than the Deprivation of Liberty Safeguards

We agree in principle that a reduction in the bureaucracy involved in making an application/granting authorisation for DoLS/LPS is a positive step, however in order to contribute useful feedback we feel it necessary to make the below comments:

Without knowing exactly what the wording for arrangements under LPS will be, how enforceable these arrangements will be, and to what extent they will mirror the enforceable conditions that can be included in DoLS authorisations, we would question whether the removal of enforceable conditions could impact human rights. We have experienced examples of conditions being truly essential to achieving less restrictive option, and/or ensuring P is deprived in a less restrictive way.

The ability to request reviews of standard authorisations, and the enforcement of conditions that specific relationships should be maintained for P can be vital in upholding P’s human rights. We can demonstrate this with an example under Article 8 ECHR where our client’s husband was accused of attempting to murder her, and there was a history of domestic violence in the relationship. Our client did not remember any of the unpleasant times and her dementia had orientated her in a time when she was happy with her marriage and life. Being kept away from her husband had a dramatic effect on her psyche and general well-being and she began to deteriorate. Our representations were that contact should be resumed and supervised as this was in best interests of the client, and this was agreed and implemented and P demonstrated a drastic improvement quickly.

We have regularly encountered examples under Article 3 ECHR with regards to accessing the community. Often clients in care homes are not supported adequately to do this, however if a care plan or DoLS condition requires that this should happen due to assessed need, the IMCA/RPPR has been able to challenge or request a review to ensure that the client’s human rights are upheld. We are concerned that if conditions/arrangements are reduced or given less weight then it may become harder to protect clients in these situations.

It is stated that advocacy for clients under LPS would be “opt out” rather than “opt in”, however there is the caveat that advocacy might not be used if it was not in the best interest of the client. We feel that it would be necessary to provide a clear definition of what would represent advocacy not being in the client’s best interest. We have for example encountered instances where advocacy was not used in change of accommodation IMCA referrals and SMT referrals because it was felt that including an advocate (and by extension the client) would slow down the decision making process. Excepting examples where an emergency decision has to be made, failing to refer to advocacy in these cases is a breach of the client’s statutory rights. We have concerns that this best interest caveat could be manipulated to expedite decisions at the cost of client involvement and representation, unless the circumstances for when advocacy should not be involved are more clearly defined. If this is not defined from the outset it will likely be the case that case law will eventually be required to provide the appropriate definition, however there is an opportunity to decide this now and make the LPS more empowering for clients from the start.

One of the key areas that the LPS differs from DoLS is that the LPS is attached to the individual rather than the location. While this is positive as it allows the LPS to travel with the individual (e.g. if they are admitted into hospital while under an LPS) and cuts down on bureaucracy, we do feel that the parameters of this need to be clearly defined. For example if the LPS grants the power to allow certain restrictions or permits specific care and treatments to be given without the individual’s consent, this should not be extended to include additional restrictive care/treatments when the individual subject to the LPS is moved to another location. If significant additional restrictions are required then the LPS should be reviewed or amended as required to reflect these changes. While we are on board with the reduction in unnecessary bureaucracy, this should not permit professionals to have too much power to administer additional restrictions within the LPS framework without proper assessment. Similarly if the LPS travels with a person, a clearly indicated timeframe should be established for how long this lasts, for example if a person is placed into temporary respite care that last longer than was intended the transferable LPS should not last indefinitely and should be reviewed after an agreed timespan has elapsed.

Whether the Government should proceed to implement the proposals for Liberty Protection Safeguards as a matter of urgency

As the largest national IMCA provider we see some local authorities excel and manage their DoLS referrals in a timely fashion, while in neighbouring area there are mass waiting lists and cases that will never be seen as they are low priority. We also see examples of local authorities refusing or ignoring individuals’ rights to advocacy and the right to review their deprivations. As a result of this we feel strongly that the repercussions for failure to meet statutory duty needs to be clearly defined and enforced so all areas provide the same level of service, as intended but not actually always practised in Care Act. Based on this we feel that parliament should pass this as a matter of urgency, but not at the cost of failing to consider the below points.

- One of the key reasons given by local authorities for failing to meet their statutory responsibilities with regards to DoLS is the lack of funding and the subsequent lack of resources available to meet this need (Liverpool City Council & Anor, R (On the Application Of) v The Secretary of State For Health). While the reduced bureaucracy involved in LPS may reduce funding issues to some degree, the increase in cases referred by the lowered age criteria (16-18 year olds will now be included), the fact that there may be an increased cost to local authorities if advocacy services are used more due to the “opt out” approach may offset this reduction in cost, or even create a larger pull on resources/funding. There is also the additional factor that individuals unlawfully deprived of their liberty can seek damages for this, which could create additional costs. It would be unwise to pass this legislation quickly if the funding issues have not been resolved as otherwise the LPS may find that it encounters the same issues with regards to local authority compliance that DoLS has.

- As there will now be an additional responsibility placed on NHS trusts to authorise LPS for the patients, time will be needed to allow the trusts to prepare their staff for the upcoming changes. Again we feel that these changes should be passed urgently, but not at the cost of allowing appropriate bodies to prepare properly.

Whether a definition of deprivation of liberty for care and treatment should be debated by Parliament and set out in statute.

We would question which house would debate this? If the House of Lords debate this legislation and agree it and then pass to House of Commons to vote through, then would this be significantly quicker than only passing through the House of Commons? If so this could speed up the process of introducing LPS

If setting out this definition in statute enshrines LPS and the clear fundamental statutory rights for eligible persons in an Act of Parliament which all local authorities/NHS trusts/private providers etc. MUST adhere to (with clearly defined penalties for non-compliance outside of Article 5 enforceable right to compensation) then we agree that this would be a positive step.

As stated in the first section of this response, we have concern that transferable LPS could allow liberties to be taken with regards to treatment and care. A clear definition could ensure that the LPS are provided in a manner that protects individuals’ rights and freedoms and cannot be manipulated to enforce care and treatment that fall outside of its agreed parameters. Again if this is not established from the outset it will likely be necessary for it to be established via case law over an extended period of time.