What next for the Liberty Protection Safeguards

Honestly, we can’t begin to predict now what will happen. The Liberty Protection Safeguards are on hold, in the longest of the long grass. Will they ever happen or is that it now?

If not the Liberty Protection Safeguards, might something else energe? Or will others in the future build on the work done so far, re-engineering the Liberty Protection Safeguards into something actually workable? As the consultation response made clear, the proposed arrangements were verging on unworkable in parts, with particular concerns around self-regulation of care home settings and hospitals. Or, maybe we are now into the territory of no Liberty Protection Safeguards at all, instead we turn back to the Deprivation of Liberty Safeguards and work out how to make them better.

Given a general election is coming in 2024, the winning party will have loads to do, with social care high on the public’s list of priorities. People in care homes self funding their care is a wicked problem, especially so when they don’t wnat to be there. Defending rights for those in care homes and supported living who are tacidly objecting should be up there with how its paid for, but will it make the cut as manifestos are finalised?.

Whatever the politics, the Courts are really busy. The push for reform from them will continue. For the Courts, the nub of the matter turns on ECHR Article 8, at the heart of every COP11 welfare application is a matter of right to a private and family life. Hillingdon turned on love between a father and son. We should never, ever loose focus on the words of Mark Neary how a Local Authority positions its work on mental capacity can:

“reveal an awful lot about attitudes towards people in state care and the sometimes large chasm between the legal process and people’s ordinary lives”

May be those with time to research can find a country somewhere which has cracked ECHR Article 5 in health and social care settings that we can look to? What do they do? Or is it simply that those countries just haven’t had their Cheshire West moment? Are they still using Guardianship, which restricts legal capacity and autonomy, and non decision specific health and social care. Can an international perspective help us in the UK decide as a sector, a profession, what do we want it to look like?

How would we do it so it was meaningful? Where do we go with COP11s and Welfare applications? Would we ditch the acid test or strengthen it? There is a lot we don’t know the answers to, but these are our talking points:

The acid test is Lady Hale’s ‘What if they did object’ question, which means we have to assess thousands more people who aren’t explicitly objecting. Is this actually helpful, or not, to the person and their family? Would a new Parliament bring in a new law that overrules the Supreme Courts acid test interpretation? To do so, would they need to revoke the Human Rights Act and withdraw from the European Convention on Human Rights so there is no Article 5 to compy with? To do so, would this actually leave people less access to safeguards than being sat in a long backlog waiting for a Best Interest Assessor to visit?

We would be happy with a system where we retain the Deprivaiton of Liberty Safeguards, but spend more time trying to work out whether the person is objecting before progressing throught the mandatory 6 assessments and calling in a Section 12 Doctor. A lot of what we consider objections err on the side of caution: a woman wants to return to her childhood home. That’s an objection. In the speedy (as demanded by the current Article 5(4) compliant) process, the risk is that the BIA buys into what others say about why this can’t happen.

Better social work with the person and their family over time could resolve that if a law would permit it. Not limiting the Best Interest Assessor to the 6 assessments but instead drawing in the social work. The relational work to explore what the issues are, the various positions, to amplify and advocate for P. To get P home. That’s what we’d want to happen next.

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