Liberty Protection Safeguards (LPS): Latest developments
In July 2018, the government published a Mental Capacity (Amendment) Bill, which passed into law in May 2019. It replaces the Deprivation of Liberty Safeguards (DoLS) with a scheme known as the Liberty Protection Safeguards (although the term is not used in the Bill itself).
The Act draws to some extent on the Law Commission’s proposals for reforming DoLS, but generally does not address some of the wider MCA reforms that the Law Commission suggested. So proposed reforms around supported decision-making and best interests are not included, although those omissions, and other changes from the Law Commission’s suggestions proved controversial as the Bill went through Parliament.
Key features of the Liberty Protection Safeguards (LPS) include:
- In line with the Law Commission’s suggestion they start at 16 years old. There is no statutory definition of a deprivation of liberty beyond that in the Cheshire West and Surrey Supreme Court judgement of March 2014 – the ‘acid test’
- Deprivations of liberty have to be authorised in advance by the ‘responsible body’.
- For NHS hospitals, the responsible body will be the ‘hospital manager’.
- For arrangements under Continuing Health Care outside of a hospital, the ‘responsible body’ will be their local CCG (or Health Board in Wales).
- In all other cases – such as in care homes, supported living schemes etc. (including for self-funders), and private hospitals, the responsible body will be the local authority.
- For the responsible body to authorise any deprivation of liberty, it needs to be clear that:
- The person lacks the capacity to consent to the care arrangements
- The person has a mental disorder
- The arrangements are necessary to prevent harm to the cared-for person, and proportionate to the likelihood and seriousness of that harm.
- In order to determine this, the responsible body must consult with the person and others, to understand what the person’s wishes and feelings about the arrangements are.
- An individual from the responsible body, but not someone directly involved in the care and support of the person subject to the care arrangements, must conclude if the arrangements meet the three criteria above (lack of capacity; mental disorder; necessity and proportionality).
- Where it is clear, or reasonably suspected, that the person objects to the care arrangements, then a more thorough review of the case must be carried out by an Approved Mental Capacity Professional.
- Where there is a potential deprivation of liberty in a care home, the Act originally allowed for care home managers – if the local authority felt it was appropriate – to lead on the assessments of capacity, and the judgment of necessity and proportionality, and pass their findings to the local authority as the responsible body. This aspect of the Act has generated some negative comment, with people feeling that it might lead to insufficient independent scrutiny of the proposed care arrangements. In light of this, the government has confirmed that this provision will now not be implemented when the new system comes into effect in April 2022. It will instead be kept under review.
- Safeguards once a deprivation is authorised include regular reviews by the responsible body and the right to an appropriate person or an IMCA to represent a person and protect their interests.
- As under DoLS, a deprivation can be for a maximum of one year initially. Under LPS, this can be renewed initially for one year, but subsequent to that for up to three years.
- Again, as under DoLS, the Court of Protection will oversee any disputes or appeals.
The new Act also broadens the scope to treat people, and deprive them of their liberty, in a medical emergency, without gaining prior authorisation.
The target date for implementation is now 1 April 2022. Prior to this, following a 12-week consultation planned for 2021, both a single Mental Capacity Act and LPS Code of Practice, and regulations, will be laid before Parliament and subsequently published. The sector trusts this will bring clarity to some outstanding questions about how LPS will work in practice and the training and implementation required.
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