29th July 2019

Liberty Protection Safeguards: Dates for your diary!

 

Caroline Dinenage, Minister for Care at the Department of Health and Social Care (DHSC) has published an open letter in which she outlines the progress so far with LPS and what Government plans to do. Also, very importantly, her letter gives us some dates.

Implementation

The liberty protection safeguards (LPS) will definitely replace the deprivation of liberty safeguards (DoLS), because the legal framework for this to happen received Royal Assent last month. Cue lots of activity in the DHSC, and this useful letter from the minister.

We now know that implementation of the LPS will happen on 1st October 2020. But it won’t be a ‘big bang’, where we all drown in a forest of paperwork in a crazy attempt to replace every DoLS authorisation with an LPS one. Very sensibly, DoLS will continue in parallel with the LPS, for a year. The way it will work is this.

A DoLS authorisation can’t last longer than a year; and no new ones can be given after 30th September 2020. So any DoLS authorisations that already exist on 1 October 2020 will just run on, until their expiry date (unless of course there is reason to end them earlier, such as the person moving away from their care home , or regaining the capacity to make their own decisions about consenting to care or treatment). If a new authorisation is needed to protect the person’s rights, because their care plan continues to be one that deprives them of their liberty, then, for this individual, we must then use the LPS, because no new DoLS authorisation can be given. This should avoid most of the ‘bulge’ that would otherwise happen, by effectively spreading the transition over the following year.

There will, of course, be new providers brought into the LPS net who have, until now, generally avoided thinking too much about deprivation of liberty. This is because, unlike DoLS, the LPS can be used in supported living , shared lives, and home-care settings. And a new system is inevitably worrying; the Government is aware of this, and already planning the support that the whole of health and social care will need, throughout England and Wales, where we provide services to people aged 16 and over.

Leading up to implementation

I can tell you that work has already begun on the necessary support. The required set of regulations, to outline exactly who can do what, will be produced during the spring of 2020.

The code of practice will be such an essential tool for everyone involved, to help us find our way around the LPS. I’m one of many stakeholders involved in the drafting, and we all share the Minister’s

absolute priority…to ensure the code of practice delivers on providing detailed and easy to understand guidance which will ensure the successful implementation of the new system.’

The code of practice is likely to be put out for public consultation during the coming autumn and of course we’ll share the links so that you can have your say.  Its publication, like that of the regulations, is planned for next spring, so about six months ahead of the implementation date. This will, hopefully, coincide with a full refresh of the wider code of practice to the Mental Capacity Act (MCA), which is currently under way. The original code is now over 10 years old, and, though it’s still a really useful resource, it will benefit from updating.

Resources, training and guidance

As well as the regulations and the new code of practice, the Minister’s letter outlines that Government ‘is taking forward a range of activity to prepare for implementation… working closely with key delivery partners and stakeholders.’

Translated into more everyday language, this means that the DHSC plans shortly to publish some initial information about the LPS, intended to help getting ready for the new system, which they will make publicly available. They are also planning additional sector-specific guidance, and training for new roles such as that of Approved Mental Capacity Professional, which is based on the DoLS best interests assessor (BIA) role.

And, importantly, the DHSC is currently working on a revised Impact Assessment, to give us a grasp on the costs and scope of the necessary preparation for transition, of enabling learning for everyone who will be involved with it, and of ‘business as usual’ working within the LPS in the future. Incidentally, I do advise you all to wait for the new Impact Assessment before beginning to plan in practical terms for this change from DoLS to LPS. It’s likely that the Impact Assessment will be far more detailed and comprehensive than the two earlier versions, and also more realistically attuned to the prospective costs for providers, particularly those in care homes. It should be with us before the autumn, giving us a clear year to engage with the practicalities of the switch, from a position of knowledge.

Conclusion

At this stage, I find this letter hugely welcome. It calms down the natural pessimists among us, by making the implementation date later than we had feared. It makes clear that Government is being pro-active in developing the necessary resources to enable the LPS to work in practice. Best of all, perhaps, it highlights that they are planning, and hopefully finding funding for, the wide range of training and support that will allow the LPS to fulfil their most essential function, that of protecting the rights of people who lack capacity in England and Wales, when they need the help of health or social care.

*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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