Update: Liberty Protection Safeguards

Overview of the draft Regulations that will set out how LPS will operate. Plus pause on the care home manager role.

The Department of Health and Social Care has launched a Liberty Protection Safeguards’ (LPS) collection page bringing together documents on LPS as the Department works towards implementation – currently planned for April 2022.

Deprivation of Liberty Safeguards (DoLS) and LPS stakeholders will be interested in reading the note of the October LPS steering group meeting. We are expecting a 12 week consultation on the draft Regulations and Code of Practice in the Spring of 2021. There are going to be six sets of Regulations and the Code is to be a merged Code covering both the main Mental Capacity Act and LPS. So watch out for that.

However, what you will be pleased to learn is that the role of the care home manager in LPS is not going to be implemented. It is acknowledged that this role in the Mental Capacity (Amendment) Act 2019 “has always been contentious”. Government has heard representations from across the sector, both for and against this role, and considered its potential very carefully. Readers will recall that it was originally designed so that people who knew the person, understood their wishes and feelings could lead the LPS process (and reduce the burden on LA s and CCGs).  It has been decided that now is not the right time to introduce this.  Although the case for the role will be kept under review.

As for how the LPS will operate in England, six sets of Regulations will set out how LPS will operate in England. The DHSC updated the LPS steering group on five of these as follows:

  • “The Independent Mental Capacity Advocate (IMCA) role under LPS will be set out in regulations. These regulations will amend existing IMCA regulations set out under the MCA. IMCAs will, for example, have the power to prepare a report in relation to the arrangements or proposed arrangements for the Responsible Body
  • Eligibility criteria and statutory training, needed to be an Approved Mental Capacity Professional (AMCP) under LPS, will be set out in a distinct set of regulations. Required training will include a conversion course for Best Interests Assessors (BIAs) under the Deprivation of Liberty Safeguards (DoLS) to become AMCPs under LPS. The regulations will explain which bodies will deliver the required training for the AMCP role. Practicing Social workers, nurses; Speech and Language Therapists, psychologists and occupational therapists will be eligible for the AMCP role. These regulations will also include a definition of a prescribed connection to a care home. Individuals who meet that definition will not be able to act as an AMCP in certain cases.
  • A set of transitional regulations will set out the legal framework for LPS and DoLS to run alongside each other for the first year of implementation. This will ensure that people who are subject to a DoLS authorisation or a Court Order, that runs into the first year of LPS implementation, are still able to access the necessary safeguards until their authorisation or Order ends.
  • A set of assessments regulations will set out who is able to carry out assessments and determinations under LPS.
  • A set of consequential regulations will amend other pieces of legislation that will need updating as a result of the MC(A)A2019.”

Readers will recall CQC’s commentary on DoLS to LPS in their State of Care report where they underlined the importance of continuing to improve the way providers, local authorities and others work together to support the proper use of DoLS and to give careful consideration of how DoLS and LPS will work alongside each other in the first year of implementing LPS. They specifically state that the time ahead also provides an opportunity to consider what can now be done with the current DoLS system to ease the transition.

We will keep readers updated.

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Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.

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