Liberty Protection Safeguards

A Heads Up Guide To A Forthcoming Change In Legislation

Stuart Prince

Stuart Prince
Special Advisor at Age UK

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In April 2022, the current Deprivation of Liberty Safeguards (DoLS) will be replaced with a successor – the Liberty Protection Safeguards (LPS). The introduction of LPS has happened due to an amendment to the Mental Capacity Act, 2005. DoLS, a product of that Act, has been a hugely necessary but somewhat flawed vehicle, whose purpose was to ensure that people who cannot consent to their care arrangements are protected, should those arrangements deprive them of their liberty.

The new LPS have the same goals but have been tailored to smooth out some of the problems from DoLs. It is expected that DoLS will run alongside LPS for a year after implementation to ease the transition of existing cases, although it will not be used for any new cases. (Social Care Institute for Excellence).

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The LPS results from an amendment to the Mental Capacity Act 2005 and not a new Act. So, the five principles underpinning the MCA 2005 remain in place, from a person being assumed to have capacity unless it is established otherwise; to a person not being assumed to lack capacity, just because they want to make an unwise decision. (DHSC).

Although the Law Commission made several wide-ranging proposals for reforming DoLS, not all of them actually made it into the proposed new legislation – some proposed reforms around supported decision-making and best interests have not been included, something which caused some consternation in Parliament. The Bill was published in July 2018 as an amendment and became law in May 2019. (Social Care Institute for Excellence).

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Key features of the Liberty Protection Safeguards

One of the key tenets of LPS is that any Deprivations of Liberty have to be authorised in advance by a ‘responsible body’. For example, the process can be very informal, for example, a simple email, although official forms could also be used. A ‘no wrong door’ principle will apply, meaning whatever the approach, a request should not be refused due to a technicality in the application method. Responsible bodies will be expected to work together to identify the correct body in cases where this is not clear. The correct responsible body will vary depending upon the care setting the subject person is in:

  • In a hospital, it will be the Hospital Manager
  • For Continuing Health Care outside of a hospital, the ‘responsible body’ will be the local CCG (or Health Board in Wales)
  • In care homes and supported living schemes etc. the responsible body will be the Local Authority, even for self-funders

This latter represents a change in process, as, under DoLs, the authorising body in supported living is the Court of Protection. This has often meant considerable delays in authorisations (sometimes years) . In turn, this has meant that these authorisations cannot always be made in advance and so often end up being retrospective. (DHSC)

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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 proposed care arrangements
  • The person has a mental disorder
  • The arrangements are necessary to prevent harm to the cared-for person, and are proportionate to the likelihood and seriousness of that harm

The responsible body must consult with the person and others to understand the person’s wishes, feelings, and level of understanding about the arrangements. Therefore an individual from the responsible body (it has to be someone not directly involved in the care and support of the person subject to the proposed care arrangements) must conclude if the arrangements meet the three criteria above.

It remains to be seen in practice how the responsible bodies will resource such decision making in such a way as to enable the timely processing of what could be high numbers of applications. (Social Care Institute for Excellence)

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Where there is a request for authorisation for a deprivation of liberty in a care home, DoLS legislation currently allows for care home managers – if the local authority agrees – to lead on the assessment of capacity and the judgement of necessity and proportionality and pass their findings on to the local authority in its capacity as the responsible body. This is a pragmatic approach, borne from expediency. This feature of DoLS has received criticism, as it was felt that it might lead to insufficient independent scrutiny of the proposed care arrangements. Accordingly, the Government has confirmed that this mechanism will not be part of the new LPS when it comes into effect in April 2022. Again, the person accountable to the responsible body would need to undertake those assessments. (Social Care Institute for Excellence)

Where it is evident, or reasonably suspected, that the person being cared for objects to the deprivation of their liberty, then a more thorough review of the case must be carried out by an Approved Mental Capacity Professional. Furthermore, that professional can only be referred to the case by the responsible body. Again, how this will be resourced in practice remains to be seen at this time. (DHSC)

Similarly, once a deprivation request is authorised, there should be regular reviews by the responsible body, which also needs to ensure it upholds the person’s right to an appropriate person or an IMCA to represent them and protect their interests. During the authorisation process, there will be an explicit duty for the responsible body to consult with those caring for the person and with those interested in the person’s welfare. There will be an opportunity for a family member or someone else close to the person to represent and support the person through the process as an “appropriate person”. Family members or others close to the person will also be able to raise concerns throughout the process and in response to any authorisation. (Social Care Institute for Excellence)

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Liberty Protection Safeguards key dates

A deprivation under LPS can be for a maximum of one year initially. It can be renewed for an extra year upon review and then subsequently for up to three years. Again, as under DoLS, the Court of Protection will oversee any disputes or appeals.

Although the target date for implementation is 1 April 2022, there will be a 12-week consultation before this, currently planned to happen during 2021. After that, a single Mental Capacity Act and LPS Code of Practice, with all of its regulations, will be presented to Parliament and then subsequently published. The Government is hopeful that this lead-in for the new process will clarify some of the questions about how LPS will work in practice and the resources and training required to implement it. (DHSC)

These changes are coming, and we can expect the discussions around finding the right balance between protecting people and making the process manageable and achievable to continue for a while yet, both before and after implementation. As care providers, we must focus on understanding the application of the new legislation to enable us to ensure that those people whose liberty is compromised receive the best possible support. (Social Care Institute for Excellence)

Detailed information on LPS can be found in the Government’s publications here.

This article was informed by information from the Social Care Institute for Excellence and the Department of Health and Social Care.