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28th May 2019

Liberty Protection Safeguards: What will they mean for Adult Social Care?

 

The liberty protection safeguards (LPS) have now finished their parliamentary journey, and at last we can see what the framework will look like that will replace DoLS. As it becomes clearer, we’ll update you here. Till then, here are some answers to some of the questions you may be anxiously asking yourselves.

What’s this all about?

The deprivation of liberty safeguards (DoLS) came into law in 2009, to protect the rights of people in care homes or hospitals who are deprived of their liberty, in their best interests, to be given the care or treatment they need.

DoLS now, and LPS in the future, protect people’s rights by creating a clear system for authorising very restrictive care plans – this is so that nobody is deprived of their liberty on the whim of a manager, or for staff convenience, or if there is a less restrictive way to keep them safe.  They also provide a way for users of services, or those who care about them, to challenge deprivation of liberty in court.

How are LPS different from DoLS?

LPS are supposed to be simpler, and in some ways they certainly will be.  It’ll be possible to renew authorisations for up to three years, provided the person’s capacity and their condition is unlikely to change, which is impossible under DoLS. Like most of the MCA, LPS will apply to people from the age of 16. And if you know, for example, that Jinna comes to you for respite for a week every couple of months, and goes to hospital overnight twice a year for blood tests, one authorisation can cover her hospital and respite stays as well as her home care plan.

Where will LPS apply, and who will run the scheme?

Like the rest of the Mental Capacity Act (MCA), LPS will apply only in England and Wales. A new role, that of ‘responsible body’, will be responsible for authorising deprivation of liberty in any setting – or, as above, in more than one setting.

This gives new responsibilities to NHS hospitals and clinical commissioning groups (CCGs), but adult social care providers are already accustomed to dealing with their local authority DoLS teams, and this relationship will in general continue.

Which social care settings will LPS apply to?

In contrast with DoLS, which can only be used to protect someone’s rights if they are aged 18 or over and being cared for in a hospital or care home , the LPS will apply to everyone aged 16 and over who is being cared for in any setting, such as supported living , shared lives schemes, or in their own homes with carers coming in.

What assessments will there be?

Another difference from DoLS is that, instead of the six DoLS requirements for authorisation, three LPS assessments must show that:

  • The person lacks capacity to consent to the arrangements required to give them necessary care or treatment; and
  • They have a mental disorder, for example, some kind of dementia, or a learning disability , or have acquired a brain injury in an accident or after a stroke; and
  • The arrangements are necessary to prevent harm to the person, and proportionate to how likely that harm is, and how serious it would be.
How will LPS work in registered care homes?

An unexpected change, which has caused a lot of concern, is that extra responsibilities are being given to registered managers of care homes for people aged 18 or over.

It will be up to the local authority to decide whether to delegate to the registered manager the tasks of arranging the assessments and drafting the authorisation if it seems justified. The local authority can also delegate responsibility for arranging reviews and renewals of the authorisations, and identifying if anything has changed that means the authorisation is no longer the right thing for that person.

And the manager will always be responsible for consulting with the person and other people, such as their relatives, to find out the person’s wishes or feelings in relation to the arrangements.

When will we change over from DoLS to LPS, and how will the transition work?

At the moment it looks as if the changeover will come on 1 April 2020, by which date we’ll have the new code of practice and will have had training on the LPS, as well as guidance from the Department of Health and Social Care (DHSC).

The transition is still under discussion, and we will let you know when we know more.  So far, it looks as if the transition from the old to the new systems is going to create more problems for the ‘responsible bodies’ (hospitals, CCGs and local authorities) than for care providers.

Should we panic?

No, please don’t panic! The intention of the LPS is to continue to protect people’s rights, but in a simpler and less bureaucratic way than DoLS.  In some ways the LPS will certainly be easier to get our heads around than DoLS, and where it’s still complicated, the new code of practice group will explain how to make it all work.

How can we get ready for LPS?

We will provide further guidance for care home managers, about their specific responsibilities under LPS. In the meantime, all adult social care providers should:

  • Start collecting any relevant evidence that comes your way from social workers or doctors, of someone’s lack of capacity to make certain decisions, or a diagnosis of a mental disorder
  • Practise – and record – on-going consultation with the individual and those who care about them, to capture this person’s wishes and feelings, and what is important to their happiness, so that care plans are firmly person-centred
  • Understand what the MCA says about restraint, (see code of practice chapter 6, here) and keep checking for less restrictive ways you can care for the person and keep them safe.

*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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