June 18, 2021
The Liberty Protection Safeguards (LPS) are due to come into force in April 2022 and were introduced in the Mental Capacity (Amendment) Act 2019. They will replace the Deprivation of Liberty Safeguards (DOLs) system. The Liberty Protection Safeguards will deliver improved outcomes for people aged 16 and above, who are or who need to be deprived of their liberty.
Following the publication of some new factsheets by the government, here is an overview of the key points from each of the six factsheets:
LPS: Criteria for authorisation
- People who might have an LPS authorisation include those with dementia, autism and learning disabilities who lack the relevant capacity
- The Responsible Body (RB) must ensure that:
- It has complied with its duty to appoint an appropriate person or independent mental capacity advocate (IMCA)
- The person, and certain others, have been consulted as far as practicable and appropriate about the person’s wishes and feelings
- The three assessments and determinations have been carried out around capacity, medical and necessary and proportionate
- A pre-authorisation review has been carried out, and appropriate determination made
- The RB is satisfied that an authorisation should be given
- The authorisation conditions must be met
- The RB must consult with a number of people, including the person themselves, anyone named by the person and any attorney of a lasting power of attorney or enduring power of attorney
- Once all consultations, assessments and determinations have been completed, a pre-authorisation review will take place. The RB will then decide whether to authorise the arrangements or not
LPS: The appropriate person and independent mental capacity advocates
- The ‘appropriate person’ was introduced in the Mental Capacity (Amendment) Act 2019 and is a non-professional who provides representation and support for the person during the LPS process
- It will normally be someone that is close to the person such as a family member or a volunteer from a relevant organisation
- The Responsible Body (RB) will determine if there is someone suitable for this role
- If there is no one suitable to act as an appropriate person, the RB can appoint and Independent Mental Capacity Advocate (IMCA)
- An IMCA is an experienced and trained individual who will represent and support the person through the LPS process
LPS: The approved mental capacity professional role
- The Approved Mental Capacity Professional (AMCP) is a new, specialist role providing enhanced oversight for those people that need it most
- An AMCP will be an independent, trained, registered professional
- An AMCP may carry out a pre-authorisation review to determine if the authorisation conditions have been met
- An AMCP will normally be employed by the local authority, NHS hospital trust, local health board or clinical commissioning group
LPS: Deprivation of liberty and authorisation of steps necessary for life-sustaining treatment or vital acts
- In some exceptional circumstances it might be necessary to take steps which amount to a deprivation of liberty on a person before a decision to authorise those arrangements has been made by the ‘Responsible Body’
- Exceptional circumstances include the need to carry out life-sustaining treatment or a vital act to prevent a deterioration in a person’s condition
- There are four conditions that must be met in these instances:
- The steps consist of, or are for the purpose of, giving life-sustaining treatment to the person or for doing any vital act
- The steps are necessary in order to give life-sustaining treatment or to carry out a vital act
- There is reasonable belief that the person lacks capacity to consent to the steps
- An authorisation to deprive someone of their liberty is being sought from the responsible body under the LPS, or a relevant decision is being sought from the court, or there is an emergency
LPS: Authorisations, renewals and reviews
- An LPS authorisation can be effective immediately or at any time within 28 days of the authorisation being issued
- A person’s first authorisation and renewal can be up to 12 months
- Renewals can last up to 36 months
- Where a Responsible Body (RB) believes, or reasonably suspects, that any authorisation conditions are not met it can end the LPS sooner. Examples include the person having capacity or regaining capacity, the person no longer has a mental disorder and the arrangements are no longer necessary and proportionate
- The Responsible Body will determine when an LPS should end
- An authorisation can be renewed if the RB is satisfied that the authorisation conditions are still being met and it is unlikely there will be any significant change in the person’s condition during the renewal period
- Before a renewal, the RB must consult with the person and other relevant individuals
- The authorisation record should specify the programme for reviewing the arrangements during the authorisation period (such as key dates) and will provide details about the authorisation including the identity of the RB
- A review may also be carried out:
- Before an authorisation is varied
- If a reasonable request is made by a person with an interest in the arrangements
- If the person becomes subject to mental health arrangements or requirements
- If there has been a significant change in the person’s condition or circumstances
- A review should be completed by individuals, such as Approved Mental Capacity Professionals (AMCP), on behalf of the RB
LPS: The right to challenge an authorisation in court
- Where an LPS authorisation is in place, the person, their Independent Mental Capacity Advocate (IMCA) or anyone else can apply to challenge the arrangements under 21ZA of the Mental Capacity Act 2004 at the Court of Protection
- The court has the power to:
- Uphold authorisations
- Terminate authorisations
- Vary the authorisation
- It is also possible to challenge in court whether a decision maker is authorised by section 4B of the Mental Capacity Act 2005 to take steps which amount to deprivation of liberty for life sustaining treatment or vital acts
