Video: Liberty Protection Safeguards - Looking forwards

The Liberty Protection Safeguards (LPS) are intended to replace the Deprivation of Liberty Safeguards (DoLS).

As part of our work to support the social care sector to prepare and embed LPS within everyday practice, SCIE has produced a short video to encourage the sector to consider how LPS will seek to promote practice which aligns with human rights and the core principles and duties of the Care Act 2014.

Video transcript

• OpenIntroduction

  Eleanor Roosevelt, the diplomat and activist who oversaw the drafting of the Universal Declaration of Human Rights, is quoted as saying:

  Where, after all, do human rights begin? In small places, close to home - so close and so small that they cannot be seen on any map of the world. Yet they are the world of the individual person.

  Eleanor Roosevelt

  The philosophy embodied in this statement underpins an amendment to the Mental Capacity Act, due to come into force soon.

  Known as LPS, the Liberty Protection Safeguards, the amendment shifts the focus from the deprivation of liberty - as, until now, has been the case - to the protection of liberty.

  Following a series of landmark cases which highlighted shortcomings in both the MCA and DoLS, LPS builds on the founding principle of wellbeing that underpins the Care Act of 2014, which set in legislation that the core purpose of adult care and support is to help people to achieve the outcomes that matter to them in their life.

  LPS is about making sure that we as a sector have done what we can to protect the person’s liberty and rights to family life.

  The Care Act and Mental Capacity Act have built a solid foundation for the way we work in social care. The safeguards will help us to develop the processes we already employ.

  Further to the principle of wellbeing, there are eight other significant principles woven through the tapestry of the Care Act, each guiding us to ensure that we keep the person at the centre of any intervention, including any that could result in a deprivation of their liberty.

• Open1 – Strengths-based approach

  We should practice using a strengths-based approach, to establish a quality relationship with the individual needing support. We should look first at what the individual can do rather than just focusing on their difficulties.

  We should be practicing this way continuously, as promoting individual wellbeing - looking at the little things which mean the world to that person - is central to Adult Social Care support.

  Under LPS, the sector is reminded of the necessity, right at the onset to consider a person’s mental capacity to make decisions. To work to promote liberty. To look at risk enablement pathways thus maximising the person’s gifts, skills and capabilities to enable them to exercise their right to make decisions about their own life. If during care and support planning, arrangements are needed to enable that person’s care or treatment which may amount to a deprivation of liberty, this, regardless of the setting within which it will be provided, should be considered under LPS.

• Open2 – Individual choice and control

  Our conversations with individuals, regardless of the reason for the contact should be working towards supporting the individual to have as much choice and control as possible. We must be taking into account the person’s values, their beliefs, what is important to them and why: often, things so small that they cannot be seen on any map of the world, to enable this to be achieved.

  LPS places a duty on the sector to consult with the person to ascertain their wishes and feelings, and it is explicit that prior to putting any arrangements in place, we have actively encouraged and supported participation, ascertained the person’s view as part of the best interest process, ensuring that it is the least restrictive option.

  Under LPS, the Responsible Body - typically the NHS trust or local authority - must ensure that support is in place prior to any pre-authorisation assessments and that an Independent Mental Capacity Advocate, IMCA, will provide this if an Appropriate Person is not available.

  However, if the person is identified to have at least substantial difficulty at the point that a Care Act assessment of need begins, then this support mechanism must already be in place. It maybe from an Appropriate Person, an Independent Advocate or an Independent Mental Capacity Advocate, if decisions are to be made in the person’s best interest.

  LPS further reinforces the necessity to have a framework through which we can work together to maximise the person’s involvement, enabling them to retain as much choice and control as possible.

• Open3 – Transparency

  Transparency is about being clear to the individual and those representing them as to why a decision is being made, when it may be necessary deprive an individual of the things which often may seem small but which mean the world to them.

  LPS builds the protection of liberty into the existing care and support planning processes. The conversations around potential deprivations of liberty will take place sooner; and if we are working using strengths-based approaches, seeking to support the individual to have as much choice and control as possible, maximising their involvement in the discussions and the decision-making process, it should be easy to make our practice transparent.

• Open4 – Holistic approach

  The Care Act recognises that a person’s needs may impact on their families and support networks too. Under LPS, as consideration to the impact of a care and support plan on the person’s liberty will be taking place prior to the deprivation, it will be done in the context of this principle. As such, discussions and potential for support of those impacted by the deprivation can take place.

  Being holistic is about ensuring that decisions consider all the individual’s circumstances, their needs in the context of their skills, ambitions and priorities and recognising that it is not possible to support the person with needs, without seeing how the person fits into their wider social network.

  To ensure that all the individuals’ circumstances are considered, LPS makes it a requirement to consult others, for example, anyone interested in the person’s welfare.

• Open5 – Appropriate

  Under the Care Act, any intervention has to be of benefit to the person concerned - and it needs to be appropriate.

  What is appropriate will be determined by the level of needs of the individual - and, as each individual’s world is different - our response must be appropriate to that.

  Under LPS, previously determined assessments may be used, such as risk enablement plans, capacity to consent to arrangements and medical assessment of a mental disorder, if they remain appropriate. This enables an appropriate level of intrusion in the person’s world.

  Whilst there is flexibility under DoLS regarding the time frame for authorisation, LPS will offer greater flexibility appropriate to the person’s needs and not subjecting them to annual renewals.

  For example, for someone with end stage dementia, it may not be necessary to renew on an annual basis as, on the balance of probability, their capacity will not return. However, the opportunity exists to request unscheduled reviews, should an individual’s circumstances change.

• Open6 – Proportionate

  The principle of proportionality ensures that the level of support provided corresponds with the level of need - and no more. We should protect human rights - which begin in small places - and we should not be intruding in these unnecessarily.

  Currently, the Best Interest Assessment for a DoL authorisation seeks to ensure that the deprivation is a proportionate response to the likelihood of the person suffering harm - taking into account the seriousness of that harm - and that the placement is necessary to prevent this.

  LPS considers how a care and support plan in any setting could jeopardise the person’s liberty, and that the deprivation is proportionate to the perceived level of harm and subsequent impact of it.

• Open7 – Recognise fluctuating need

  The Care Act recognises that contact with a person at a single point in time will not necessarily provide a full picture of their needs. As there is the expectation under LPS that the sector will be working to protect a person’s liberty, there will be more scope to ensure that a fuller understanding of not only what is important for the person, but important to them and why, those things so small that “they cannot be seen on any map of the world … the world of the individual person.”

• Open8 – Maximise the person’s involvement

  LPS reinforces the necessity of the Care Act to ensure that the adult is fully involved, ensuring that their voice is heard, and that they are - to the best of their ability - making decisions for themselves.

  As with DoLS, under LPS, there is a specific duty for the Responsible Body to make sure support is in place. What is different under LPS is that it explicitly introduces a Duty to Consult and consider a person’s wishes and feelings.

• OpenSummary

  LPS involves the legal responsibility to protect liberty and places a duty on Responsible Bodies to assess for and authorise proposed deprivations of liberty, in any setting, rather than authorising once liberty has been deprived.

  Building on the successes of the MCA, DoLS and the principles of the Care Act, LPS may be seen as a recognition of the truth which lies behind Eleanor Roosevelt’s statement regarding the origin of human rights.

  Where, after all, do human rights begin? In small places, close to home - so close and so small that they cannot be seen on any map of the world. Yet they are the world of the individual person.

  Eleanor Roosevelt

  To prepare for LPS we need to take ownership of ensuring the rights conferred by the Mental Capacity Act are now realised, by utilising the already existing wealth of skills, knowledge and experience of the workforce, by preparing for the change of procedures and be ready for a change to a system that seeks to embed the empowering ethos of the Mental Capacity Act.

Further LPS resouces and support