31st January 2020

Getting Ready for the Liberty Protection Safeguards (LPS)

We updated you in the summer on how things were getting on with plans to put the LPS into practice.  At the moment, it’s slowed down a bit due to the election: so this is a good time to reassure you that you’ve not missed anything, and to give you some clues for actions you can start to take that will stand you in good stead when the LPS do come in, on 1 October 2020.

As you know, the LPS will replace the deprivation of liberty safeguards (DoLS).  Whenever we talk about this, it’s worth remembering that the purpose of DoLS, and of the LPS that will replace them, is to protect the basic human rights of those people in health and social care who

  • lack capacity to consent to ‘the arrangements’ – effectively, the care plan - to give them the care and treatment they need, and where
  • the care plan amounts to a deprivation of liberty, because the person is under complete (or continuous) supervision and control and would be stopped if they tried to leave their care setting.

Underlying purpose of DoLS and LPS

The ultimate purpose of this whole system is to enable someone who is deprived of their liberty, or people acting on their behalf, to understand why their care plan is so restrictive, and challenge a deprivation of liberty if it isn’t needed.  This is often because there’s a less restrictive option to keep them safe and well cared for.

We must not lose sight of why we do need some framework around deprivation of liberty.  Both systems are there to protect the most vulnerable of all service users, those who lack capacity and need, for their own safety and best interests, to have a really restrictive care plan.

Why the system is being changed

Before DoLS came in, the Government estimated that no more than about 20,000 people at any one time would be so intensely restricted that they are deprived of their liberty. Yet the DoLS system goes on being swamped: last year, there were 240,455 applications for authorisation: the local authority backlog, of cases not assessed during the year, has been reduced hugely but still remains at almost half of that.

This matters, because it means people might be deprived of their liberty when they never should have been; and they have had no clear legal framework to challenge their care plan; and the provider has no clear support for their actions or protection from liability.

A main reason why the system isn’t coping goes back to the Supreme Court ‘Cheshire West’ case in 2014, {here https://www.supremecourt.uk/cases/docs/uksc-2012-0068-judgment.pdf] which made it clear that very large numbers of people are, indeed, being deprived of their liberty in health and social care.  In many cases, this was not even recognised, until this judgment.

These make up a very vulnerable subset of people who use health and care services.  Often with poor memories and easily confused, they can’t always understand or remember why they are being stopped from doing things they want to do.  And there’s a real ‘power imbalance’ when confused and frail people are faced by staff, who overrule their wishes.  It’s really important that there is a clear framework for justifying any restraint, and that’s one of the great values of the Mental Capacity Act (MCA).

Necessary and Proportionate

We know this phrase, from the MCA definition of restraint of someone lacking capacity. As well as being in that person’s best interests, any restraint must be also both necessary to prevent harm to the person, and a proportionate response to how serious that harm would be, and how likely it is to happen.  Those of us in care homes or hospitals probably also recognise the phrase from current DoLS assessments: the best interests assessor (BIA) tests if deprivation of liberty is justified, in terms of being both necessary and proportionate.

You’ll be pleased, then, to know that, in the LPS,  a major feature  of the new framework is the need for an independent person (not linked to the delivery of care, or to any care home ) to assess whether the restrictions meet the ‘necessary and proportionate’ conditions, just like the rest of the MCA.

Start best practice and recording now

Open-access training materials are still in development, and the code of practice, which will be our major ‘go to’ resource, will probably not appear until late spring next year.  But you can get ahead of the curve. Get into the right habits now.  For all restraint, especially when it amounts to deprivation of liberty, consider, and record, how these restrictions are

  • necessary to prevent harm to this person; and
  • a proportionate response to the likelihood of harm to this person, and how serious that harm would be.

Record in practical terms:

‘When Janey is tired or stressed she often believes, wrongly, that her mum is expecting her home. When living alone, she was twice found at night on the dual carriageway, confused and crying. On other occasions she went into strangers’ houses looking for her mum and quickly got upset. Because of this, it is necessary and proportionate to deprive her of her liberty, using locked external doors, to stop her from going out alone. If she left [this setting] she faces a high likelihood of road traffic accidents, fear and confusion, possible abuse from others. The harm to her from these very foreseeable events would be very serious, even life-threatening.’

Then outline how you will make up for the effects of restricting her. Explain when and how staff will distract her, perhaps by helping set the tables, walking round the garden or into the community with staff, looking at her photos – show person-centredness, find out what will work.

By doing this, you will demonstrate your ability to work within the empowering framework of the LPS, by encouraging people to live with as much freedom as possible, while knowing when to restrict those freedoms, in a way that is necessary and proportionate.

*All information is correct at the time of publishing

Rachel Griffiths

Mental Capacity and Human Rights Specialist

Rachel has huge experience and knowledge in the area of Mental Capacity, including how to recognise deprivation of liberty, when and how to assess capacity and how to go about making decisions in someone’s best interests. She is nationally recognised as a leading voice with regards to Mental Capacity, and is involved with setting the agenda as well as providing advice and information about Mental Capacity. The information, guidance and support that Rachel provides helps to ensure that the way people work is within the law and recognises that the person using services is always at the centre of any decisions made. Read more

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