Liberty Protection Safeguards, settings and responsible bodies – an update

The Department of Health and Social Care has updated its collection of factsheets on the Liberty Protection Safeguards (LPS) with the publication of a third factsheet on settings and responsible bodies. You can view the factsheet on the Department’s document collection page.

The LPS contained in the Mental Capacity (Amendment) Act 2009 are due to come into force in April 2022 to replace the Deprivation of Liberty Protection Safeguards system. You can read our earlier blog on the DHSC’s planned timeline for LPS here and we set out below a slide illustrating the key milestones:LPS milestones  DHSC

Key points from the factsheet

Settings: LPS will apply in any:

  • Registered care homes
  • NHS hospitals
  • Education facilities, including day and residential schools and sixth form colleges
  • Independent hospitals
  • A person’s own home, including supporting living an shared lives arrangements

 

Who is the responsible body?

The Responsible Body (RB) will authorise the arrangements that amount to a deprivation of liberty to enable care or treatment. Determining who the RB is will vary according to where the arrangements are mainly carried out, as the factsheet explains.

In the case of hospital care in England, it will be the NHS hospital (or local health board in Wales).

But where arrangements are mainly carried out in an independent hospital, in England, the RB will usually be a local authority. Either the authority meeting the person’s care and support needs, under the Care Act 2014, or the local authority where the hospital is situated (or the local health board in Wales).

In cases where the arrangements are being carried out through the provision of NHS Continuing Healthcare the role will be filled by the CCG (or the local health board in Wales).

Otherwise, in all other cases, the RB will be a local authority, both in England and Wales and in most cases will be the responsible local authority meeting the person’s care and support needs, or, if no local authority is meeting the person’s needs, the authority in which the arrangements are mainly being carried out.

It was previously proposed that the RB may ask a care home manager to organise the assessments but this proposal was abandoned in November 2020 (see our earlier blog here).

We currently await the 12 week consultation on the draft regulations and the Code of Practice in the Spring of this year. We will keep you updated as and when these documents are published.

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