Page 10 - Community Living Magazine 31 - 1

SOCIAL CARE LAW
The Liberty Protection Safeguards

What will be the effect of the Law Commission’s

proposals, particularly for people in ATUs?

Belinda Schwehr explains and examines new legal proposals intended to
protect individual liberty. What will be the implications for people in
assessment and treatment units?

he Law Commission’s proposals to who meets the requirements set out in rights to advocacy (including appointment
Tprotect an individual’s liberty cover regulations; for example, certain types of of an Independent Mental Capacity
arrangements in supported living psychologists or doctors holding a licence Advocate [IMCA] to represent and
accommodation, shared lives schemes, to practise, could provide the assessment. support them if there is no appropriate
respite care, children’s homes, The regulations could also be used to person appointed), regular reviews and
residential special schools, foster care, specify circumstances in which a access to the courts.
and private and domestic settings. ‘specialist’ medical assessment must be
They will no longer be setting-based carried out; for example, requiring that There would be statutory authority to
at all. people with autism should only be deprive someone of their liberty
assessed by practitioners with temporarily in emergencies but only to
The Liberty Protection Safeguards (LPS) qualifications or experience in the enable life-sustaining treatment or to
will replace Deprivation of Liberty treatment of autism. prevent a serious deterioration in
Safeguards (DoLs) and will apply to their condition.
arrangements proposed or in place to The draft Bill provides that an assessment
enable the care or treatment of a must confirm that the arrangements Implications for people at risk of
person, and which would give rise to a are necessary and proportionate by episodes in Assessment and Treatment
deprivation of that person’s liberty. having regard to either or both of the Units (ATUs)
They will apply when: following matters: Protection under the Liberty Protection
Safeguards proposals will extend to
l a person is to reside in one or more (1) the likelihood of harm to the person if people with learning disabilities and
particular places; the [proposed] arrangements were not autism even if they do not present with
in place and the seriousness of that abnormally aggressive or seriously
l a person is to receive care or treatment harm; and irresponsible conduct.
at one or more particular places;
(2) the likelihood of harm to other To that extent, whether or not one thinks
l the means by and manner in which individuals if the [proposed] of one’s relative with a learning disability
a person can be transported to a arrangements were not in place and or autism as someone ‘of unsound mind’,
particular place or places. the seriousness of that harm. the proposals do not change the law as to
whether such a person can be sectioned
Unfortunately it will still be necessary to This must be verified by an independent under the Mental Health Act: they cannot
decide whether a regime amounts to reviewer and then in some cases an be, which is a good thing.
deprivation of liberty. Logically the approved mental capacity practitioner.
decision-maker will have to be the local In my view the scope of those two But it is likely to be the more
authority or Clinical Commissioning officers’ roles is where controversies challenging clients who are managed in
Group (CCG). But since the work will have will be fought out. ATUs. These people are either sectioned
to be done upfront, there would be no under the Mental Health Act, into ATUs,
disincentive to deciding that the acid If they think the conditions have been which legally are hospitals and have the
test was met. met, an authorisation will be issued. legal protections afforded to all
compulsorily detained patients or to
To be covered, the person must be aged The responsible body is required to those who are there voluntarily,
16 or over, lack capacity to consent to produce a record specifying the detail of as described below. Formally sectioned
the arrangements that are proposed or the arrangements authorised. patients must then be discharged unless
in place, and be of ‘unsound mind’ within an admission under Section 2 is converted
the meaning of Article 5(1)(e) of the An authorisation would last for up to to a Section 3 detention for treatment.
European Convention on Human Rights. 12 months, to be renewed for a further
period of 12 months and then for further There are some, however, who enter
Arrangements can only be authorised periods of up to three years. voluntarily and can leave, but are often
if a medical assessment has confirmed too challenging to be able to be cared for
that the person is of unsound mind. Once residence and care arrangements by any other practical arrangements, or
The medical assessment must in all are authorised, the person deprived of are told that they will be sectioned if they
cases have been prepared by someone their liberty would be entitled to ongoing try to leave. If, as noted above, they are

8 Vol 31 No 1 | Autumn 2017 Community Living www.cl-initiatives.co.uk