Anselm Eldergill, 'LPS weaknesses' (LinkedIn, 13/12/23)
LPS criticism The proposed LPS scheme is described as having the following fundamental weaknesses (paraphrased): (1) it "bakes in" the illegality of DOLS and "seems designed to permit citizens to be deprived of their liberty for months on end without any legal authorisation in place"; (2) it permits the COP to detain people who are detainable under the MHA; (3) the mental disorder condition is not ECHR compliant; (4) arguably, DOLS also does not incorporate the second Winterwerp condition; (5) it is no simpler or less bureaucratic, in reality the same six requirements remain, and the procedures are labyrinthine; (6) the legal liability provisions leave practitioners dangerously exposed. (The second Winterwerp condition is that the mental disorder must be of a kind or degree warranting compulsory confinement.)
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Some people are pressing for the Liberty Protection Safeguards to be introduced. However, the scheme has a number of fundamental weaknesses:
1) Most fundamentally, The Act ‘bakes in’ the current illegality of our standard authorisation DOLs scheme. It seems designed to permit citizens to be deprived of their liberty for months on end without any legal authorisation in place.
2) The Act permits the Court of Protection to detain people who are detainable under the 1983 Act.
3) The mental disorder condition in the new scheme is not ECHR compliant.
4) Arguably, the DOLs legislation also does not incorporate the second Winterwerp condition.
5) The scheme is not noticeably simpler or less bureaucratic. Superficially, it includes only what currently are the mental health and mental capacity requirements and part of the best interests’ requirement. However, in reality, all six of the current requirements remain. The procedures are labyrinthine.
6) The legal liability provisions leave practitioners dangerously exposed.