BASW UK writes to Care Minister over Liberty Protection Safeguards delay

The delay ignores everyday crisis situations that face many of the most vulnerable people and their families.

This week we have written to Minister for Social Care Helen Whately about the decision to delay implementation of the Liberty Protection Safeguards. The delay ignores everyday crisis situations that face many of the most vulnerable people and their families.

Earlier this year, the Department of Health and Social Care confirmed that the implementation of Liberty Protection Safeguards (LPS) were to be delayed until after the next General Election.

The LPS were designed to replace Deprivation of Liberty Safeguards (DoLS) and were part of the Mental Capacity (Amendment) Act that was passed in 2019. The LPS were repeatedly delayed, until recently when the Government confirmed that they would not bring them in during this parliament.

Mental capacity relates to a person’s ability to understand and make decisions about their life. These can be significant, such as whether a person can continue to live independently, whether they can safely leave their place of residence without accompaniment and who benefits from their financial resources. Although the term ‘mental capacity’ is not widely used in everyday language many people will have to live with the realities behind this terminology as their parents move into older age. The Mental Capacity Act contains measures to safeguard those who do not have the capacity to make some, or all, of these crucial decisions.

One of the advantages of the planned for Liberty Protection Safeguards is that it is a more light-touch system of assurance. While some 300,765 DoLS applications were received in 2022/23, an estimated 126,100 applications had not been completed at year end, an indication of the scale of the problem and the number of people whose daily lives are being potentially affected by an unlawful deprivation of their liberty. Further, delays in completing DoLS can contribute to silting up the social care system (for example, shifting long stay hospital placements to the community) since more appropriate accommodation is dependent on DoLS approval.

Taking all this together gives the impression that the Government simply does not regard the everyday crisis situations that face many of the most vulnerable people, their families and the people who support them as worthy of energy and attention. As a result, we have written to the Minister for Social Care, Helen Whately, laying out our opposition to the delay.

We will update members should we receive a reply to our letter.

View the letter below:

Dear Ms Whately,

Re: Mental Capacity (Amendment) Act 2019 / Liberty Protection Safeguards (LPS)

As you know an estimated two million people in England and Wales are thought to lack some capacity to make decisions for themselves. For example, 944 000 people in the UK have a form of dementia while 1.5 million in England are estimated to have a learning disability, a growing number of whom are reaching older age.

A population that lives longer is a real achievement for ongoing medical progress, but it is also a growing challenge. Consequently, there has been a growing recognition of the importance of legislation and policy both to protect vulnerable individuals while ensuring proportionate freedoms that most of us take for granted. As a result, the Mental Capacity (Amendment) Act was passed in 2019 which applies across both England and Wales.

Mental capacity relates to a person’s ability to understand and make decisions about their life. These can be significant, such as whether a person can continue to live independently, whether they can safely leave their place of residence without accompaniment and who benefits from their financial resources. Although the term ‘mental capacity’ is not widely used in everyday language many people will have to live with the realities behind this terminology as their parents move into older age. The Mental Capacity Act contains measures to safeguard those who do not have the capacity to make some, or all, of these crucial decisions.

Despite the Mental Capacity Act being passed under a Conservative government, there have been successive delays in the implementation of the Act. The Government was committed to both an updated Mental Capacity Act Code of Practice and within that a new Liberty Protection Safeguards - which will replace current Deprivation of Liberty Safeguards (or DoLS). Significant work has already been undertaken by the civil service with input from many stakeholders - including ourselves - on the Code.

One of the advantages of the planned for Liberty Protection Safeguards is that it is a more light-touch system of assurance. While some 300,765 DoLS applications were received in 2022/23, an estimated 126,100 applications had not been completed at year endi , an indication of the scale of the problem and the number of people whose daily lives are being potentially affected by an unlawful deprivation of their liberty. Further, delays in completing DoLS can contribute to silting up the social care system (for example, shifting long stay hospital placements to the community) since more appropriate accommodation is dependent on DoLS approval.

The vast majority of DoLS assessors (and future LPS assessors) are social workers, a specialist form of accreditation additional to social work registration, hence our commitment to this work as the British Association of Social Workers.

We were therefore disappointed that you decided to postpone further work on implementation of the Act until after the next general electionii and surprised that you felt able to reiterate this position to the Chair of the Joint Parliamentary Committee on Human Rightsiii .

Taking all this together gives the impression that the Government simply does not regard the everyday crisis situations that face many of the most vulnerable people, their families and the people who support them as worthy of energy and attention.

Our preferred position is to work with people, so we would therefore welcome a meeting with you and your officials to agree concrete steps on the way forward with a date in the diary before 30th September 2023.

Failing this we will take steps to raise this issue through all appropriate channels to ensure this situation does not continue. Tens of thousands of the most vulnerable people across England and Wales deserve better.

Yours sincerely,

Martin Sexton, Chair, Policy Ethics and Human Rights Committee

Contact officer: Kerri.Prince@basw.co.uk