‘A Practical Guide to The Liberty Protection Safeguards’ by Ben Troke

Paperback: 978-1-913715-65-6
Publication due: January/February 2022
Price: TBA

Description

To what extent can arrangements be made (placing someone in a care home against their wishes, for example) in the best interests of someone who cannot make the relevant decisions for themselves which amount to a deprivation of their liberty, and how should that be scrutinised and authorised to protect their human rights?

The current Deprivation of Liberty Safeguards (DOLS) system, in place since 2009, has long been controversial, and has been overwhelmed since a Supreme Court Judgment in 2014 expanded the definition of what “deprived of liberty” means, and massively increased the number of cases that the system had to deal with. Initially due for implementation in October 2020, we now expect the Code of Practice and Regulations to support the new “Liberty Protection Safeguards” (LPS) to be finalised throughout 2021, ready for implementation in April 2022, replacing DOLS entirely.

The new LPS system will bring significant changes, including:

  • Application to a wider group of people (including 16-17 year olds), and to all settings (rather than being limited to care homes and hospitals)
  • New criteria to justify deprivation of liberty, and a more streamlined process of scrutiny and authorisation for this, including new roles and responsibilities for NHS Hospital Trusts and CCGs, sharing the burden currently mostly held by local authorities
  • A new Approved Mental Capacity Professional (AMCP) role, though this independent scrutiny will only be available in certain situations, rather than the independent Best Interests Assessor role previously available to all.

Crucially, the right to appeal to court to challenge any deprivation of liberty, and non-means tested legal aid for this, will remain.

This book will look at:

  • The background and context to the law on deprivation of liberty
  • Article 5 of the European Convention of Human Rights
  • The Bournewood case and the birth of DOLS
  • Cheshire West and the definition of a deprivation of liberty
  • The Law Commission’s review of DOLS and the evolution of the LPS
  • The new LPS scheme in detail, in principle and practice
  • Consequences and compensation for an unlawful DoL

ABOUT THE AUTHOR

Ben Troke is a solicitor and a mediator with 20 years’ experience working in health and social care, acting for the NHS and private sector providers all over the country.  His particular interest is in decisions about mental capacity, medical treatment and deprivation of liberty, he regularly deals with urgent applications to court in emergency situations. Ben is independently rated as one of the leading practitioners in the country in the Court of Protection. He currently sits on the Law and Ethics Policy Unit of the Faculty of Intensive Care Medicine, and the Law Society’s Mental Health and Disability committee, including work on the Liberty Protection Safeguards Code of Practice, and has a decade of experience of sitting on the ethics of clinical practice committee of a large acute NHS Trust.

Ben is a partner in the healthcare team at Hill Dickinson solicitors, and he regularly speaks at conferences and provides training, in person and online.

Ben is also the author of ‘A Practical Guide to the Law of Medical Treatment Decisions’.