25th June 2019

Overview of the Liberty Protection Safeguards: Frequently Asked Questions

 

When will we have to start using the LPS instead of DoLS?

The government hasn’t yet decided on that, though it is likely to be spring or autumn 2020; we’ll let you know when we hear.  Before LPS ‘go live’, there must be a code of practice, and regulations, to support the law, together with guidance for health and social care providers. These are being worked on, so, again, we’ll let you know when these are published, and explain what they mean for providers.

 

What are the main changes?
  • Settings: LPS will apply, in England and Wales, in any setting – that means, not just care homes and hospitals, as at present, but shared lives schemes, supported living , and people’s own homes – and to everyone aged 16 and over who lacks capacity to make relevant decisions, rather than from 18 at present.
  • Portability: a single LPS authorisation can cover transport, such as a journey in an ambulance, and protect the person’s rights as they move between settings.

Example: Jinna is cared for at home by her relatives, but has monthly respite stays in a care home . She also needs out-patients appointments at the local hospital diabetic clinic twice a year, and these sometimes lead to admission for several days.  Under LPS, a single authorisation protects Jinna’s rights, and those of the staff caring for her, in all these settings and while travelling between them.

  • Length of authorisation: DoLS authorisations last for a maximum of 12 months, after which time a whole new application is needed. LPS authorisations can be renewed, which is a simpler process, and can last, in many cases, for up to three years, provided there is no change to the care plan or the person’s condition.

 

Who will manage the authorisation process?

The new responsible bodies, as they are called, who will commission assessments, arrange advocacy where needed, and grant (or withhold) authorisation, will be:

  • NHS hospitals: these are their own responsible bodies
  • Independent hospitals: the responsible body is the local authority
  • Clinical Commissioning Groups (CCGs): these are the responsible bodies where the person receives NHS continuing health care funded by the CCG in any setting except a hospital
  • Local authorities: these are the responsible bodies for everyone using adult social care, including people in their own homes and self-funders, and for anyone in independent hospitals.
  • If the person objects: for all responsible bodies, if a person says, or their behaviour shows, that they want to live elsewhere, a new role called Approved Mental Capacity Professional (AMCP) must interview them, and in this case, the local authority must do all its own arrangements of assessments, etc., when the person is in a care home. It cannot delegate arrangements to the care home manager.

 

I’ve heard that there will be new work for care homes?

Yes: there is a new role for care homes providing care to people aged 18 and over.

Unless the person objects to their placement, the local authority can ask the registered manager to do some of the processes that would be done now by the DoLS team. This includes: consult relatives and friends to discover the person’s wishes and feelings, and identify who supports them; find relevant assessments if they exist, or arrange for new ones; provide a covering statement confirming that the person doesn’t object to the care plan and that the assessments are relevant and reliable; and send this bundle to the local authority. There, the materials will be reviewed, and authorisations granted or not.

 

Why do we need such a process at all?

The right to liberty is a vital human right, but it is one that can be overruled, for the good of the person or for the good of wider society. We know that a country can imprison people, or agree to a very restrictive care plan for someone lacking capacity, but it must be done in a fair manner, in a way that the person can understand and appeal against.

DoLS are cumbersome and complicated, and local authorities have struggled with a growing backlog ever since we learned, from the Supreme Court, that far more people are deprived of their liberty than anyone had realised.

We need a simpler system, one that we can all understand, but that still protects people’s rights when their care is very restrictive. And that new system will be the LPS.

 

Will all our policies have to change?

Those of you in England and Wales will certainly have to update some policies, to take account of the changes. But don’t worry about that yet: until the ‘implementation date’ of LPS, which may be a year or more away, keep on using the current policies, that ensure compliance with the DoLS.

We plan to start checking and updating QCS policies in the autumn, as soon as we have at least a draft of the code of practice and regulations.

 

What can we start doing now, to be ready for LPS?
  • Start collecting any assessments of mental capacity and mental disorder for any individual. If they are usable under LPS, your life will be a lot easier than if you have to arrange new ones. However, this does come with a bit of health warning: always remember that capacity is decision and time specific, and that mental disorders can get better. So be prepared to think about whether anything has changed in the person’s condition since the assessment was done.
  • Get into the habit of consulting individuals, and their relatives and friends, to find out people’s wishes and feelings about how they like to live, and what makes them happy. This will help you comply with the wider Mental Capacity Act (MCA), which puts the person’s wishes and feelings at the heart of any decision-making for or about them.

 

*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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