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24 August 2018 | Comment | Article by Roman Kubiak TEP

Government seeks to introduce Liberty Protection Safeguards


Applications for Lasting Powers of Attorney (LPAs) in respect of a person’s Health and Welfare are far less common than applications for Property and Financial Affairs LPAs: in the first quarter of 2018 alone, 8,089 applications were made to the Court of Protection in respect of the latter, with only 264 applications received for Health and Welfare LPAs.

Further, the Court of Protection is increasingly reluctant to appoint deputies in respect of Health and Welfare to ensure that vulnerable people feel empowered, rather than restricted, in their everyday lives.

Find more information on our Contested Wills, Trusts & Estates department. Or if you want to discuss any issues raised in this article contact us today.

However, the government has recognised the ongoing need to protect vulnerable people in care. The proposed Mental Capacity Amendment Bill seeks to protect the rights of people who do not have the mental capacity to make decisions about their care whilst reducing the current burden on families and local authorities.

What was the situation before?

The Deprivation of Liberty Safeguards were an amendment to the Mental Capacity Act 2005 and were implemented in April 2009.

Deprivation of Liberty Safeguards were implemented following a ruling from the European Court of Human Rights in the case of HL which involved the care needs of HL and whether he could return to live with carers or be detained in hospital where he had lived in for 32 years.

The aim behind Deprivation of Liberty Safeguards was to ensure that people who cannot consent to their care arrangements in a care home or hospital are protected if those arrangements deprive them of their liberty. They are only used if absolutely necessary and are always intended to protect a person from harm.

Some common examples of deprivation of liberty include moving someone into a care home, installing locks on doors and stopping someone from leaving a building (i.e. a care home or hospital).

A report prepared by the Department of Health in April 2010 indicated that 5,500 people benefited from Deprivation of Liberty Safeguards in the first nine months. However, it became clear that the current system was not placing vulnerable people, their families and carers at the centre of the process.

Individuals were reporting that their voices were not being heard and reports also showed that the system was inefficient and lengthy: in 2017, 108,000 people were awaiting a Deprivation of Liberty Safeguards application.

Reform under the Mental Capacity Act Bill

As a result, the Mental Capacity Act Bill was introduced into the House of Lords on 3 July 2018. The reform seeks to replace the current Deprivation of Liberty Safeguards system in its entirety.

Essentially, the reforms seek to:

  • introduce a simpler process that involves families more and gives swifter access to assessments;
  • be less burdensome on people, carers, families and local authorities;
  • allow the NHS, rather than local authorities, to make decisions about their patients, allowing a more efficient and accountable process;
  • consider restrictions of people’s liberties as part of their overall care package; and
  • get rid of repeat assessments and authorisations when someone moves between a care home, hospital and ambulance as part of their treatment.

The Mental Capacity Act Bill is still currently under review by the House of Lords and has yet to be heard by the House of Commons, but, if enacted in their current form (as it is anticipated that they will be) the reforms will no doubt be a welcome change for the 2 million individuals living in the UK with impaired capacity, their families, friends and carers.

They will also hopefully have the additional benefits of improving access to human rights and reducing the existing strains placed upon the NHS and local authorities.

If you have concerns about a vulnerable person please contact a member of our Court of Protection disputes team on 02922 744 609.

Find more information on our Contested Wills, Trusts & Estates department. Or if you want to discuss any issues raised in this article contact us today.

Author bio

Roman Kubiak is a partner and head of the market leading Contested Wills, Trusts and Estates team.

He advises across the whole spectrum of private wealth disputes, with a particular focus on high value, complex and cross-border disputes including: trust disputes, breach of trust claims and applications to remove trustees; will disputes, particularly those with an international element; claims under the Inheritance (Provision for Family and Dependants) Act 1975; and claims for equitable relief under proprietary estoppel, constructive trusts and resulting trusts.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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