The liberty protection safeguards (LPS) were scheduled to come into force this October. Providers who have been worried about how to cope, with virtually no preparation and in the middle of a pandemic, can relax, at least a bit. Helen Whateley, Minister for Care, has said here,
It is now clear that successful implementation is not possible by this October. We now aim for full implementation of LPS by April 2022. Some provisions, covering new roles and training, will come into force ahead of that date… The sector will need time following the publication of the final code to prepare for implementation. We will give the sector sufficient time to prepare… I am considering a period of approximately six months for this.
Use the delay in implementation
The Minister has promised to keep us all up to date on timings. The current plan is that, during autumn 2021, Government and stakeholders will start to provide training materials, templates, guidance and advice, together with regulations to explain the detail and a code of practice to make the new law make sense and come to life in practice. It may well be a year before we have the code and the regulations: it is tempting to shelve all thought of LPS until then, and deal with more pressing worries.
Providers won’t be asked to work within the LPS until April 2022. But it’s a good idea to begin to think, and act – and, importantly, record – in a way that will fit with them. Here are some simple checks that care providers can make to align practice with the LPS, to enable the transition from the deprivation of liberty safeguards (DoLS) to LPS to be as smooth as possible.
LPS: familiar roots
DoLS have been in use for over 10 years, but many still find them confusing and overly bureaucratic. It’s no wonder that people worry at the thought of getting to grips with another complex system when DoLS are replaced by LPS.
Reassuringly, LPS are less complicated than DoLS. They have fewer assessments, and far less rigid timescales. And, like DoLS, they are rooted in the familiar (we hope) principles of the Mental Capacity Act (MCA), which in turn grow out of basic human rights, so are not half as scary as people sometimes think. Both DoLS and LPS help protect the most vulnerable users of care services, those who may need to have their freedoms restricted to keep them safe, but who lack capacity to consent to this.
However, LPS will apply to services that have never engaged with DoLS. This is because judges have shown us here that it’s not logical that DoLS only protect the rights of people from 18 upwards, in care homes and hospitals.
Supported living services, shared lives schemes, young people’s services, and home care also struggle with questions about when it’s right to keep someone safe by restricting their freedom, and how to judge when restrictions amount to deprivation of liberty. Without being able to use DoLS, their commissioners currently have to go to Court to get lawful authority for any restrictions that deprive people of their liberty.
So LPS, like the rest of the MCA, will apply to people aged from 16 upwards who lack capacity to consent to a care plan that deprives them of their liberty, in every possible setting, even their own homes.
LPS thinking about restriction
The CQC reported recently that DoLS applications fell sharply in the early days of lockdown. This was partly a result of Government guidance here that deprivation of liberty is rarely triggered by the restrictions necessary to protect everyone from COVID-19. Also, training of all kinds has stagnated during the past few months, for understandable reasons. DoLS training perhaps seemed a very low priority, when people thought they were about to be scrapped.
To prevent unauthorised deprivation of liberty, it’s essential to recognise when it is a risk. Ensure that your staff understand the basics of the MCA including DoLS.
Action points
- Check whether you provide health or care services, in a residential setting, supported living or their own home, for people who
- Are 16 or over, and
- May be deprived of their liberty to keep them safe, and
- Lack mental capacity to consent to this
If so, LPS will probably apply to you. You should already be alert to the need to protect these people’s rights if they might be deprived of liberty.
- Start now to align your staff development, information gathering and recording with the aims of LPS. Then when templates, guidance, and regulations do come along, you are collecting the right information in the right form, and the switch will be easier. This means, where people may lack capacity:
- Use the QCS app to ensure good practice
- Carry out and record assessments of why this person lacks capacity to consent to their restrictive care plan, even after all attempts to help them do this. For more information on how, see here
- Collect and record information on any diagnosis of mental disorder, such as dementia, learning disability, or acquired brain injury, that makes someone unable at this time to consent to a restrictive care plan. Include all descriptions of how this affects their ability to make this decision
- In LPS, the central plank, known as ‘N & P’, is assessment of whether the restrictions on this person’s liberty are both necessary to prevent harm to them, and a proportionate response to the likelihood and seriousness of that harm. This is already part of DoLS and the wider MCA, so where you already have independent assessments, copy them to the person’s file
- When someone lacks capacity to consent to any restriction or restraint, ensure that your records explain clearly why this is both necessary and proportionate for that individual. Always record what less restrictive options you’ve considered or tried, without success. This is essential evidence for CQC of MCA-compliant practice
- Set dates to audit progress on clear recording and put the LPS date in your diary – currently, the implementation date looks like 1 April 2022, and we’ll let you know if it slips
