The social care sector is still waiting for the Liberty of Protection Safeguards (LPS), which will replace DoLs, to come into being. All we know at present is that the government has said that subject to a consultation, the LPS regulations and the 25 chapters, that make up the code of practice, will come into force in April 2022.
So, why has it taken so long to replace the strained DoLs process? A combination of changes to the role of Registered Manager, Brexit and COVID-19 has brought sizeable delays to the reform process. It has led some to even speculate that the April 2022 deadline will not be met.
Preparing for great change
It is crucial, however, regardless of further delay, that those working in the care sector, suitably prepare for the new ruling to come in. So, where do care services start? Well, the LPS process is still heavily based on the Mental Capacity Act. In other words, it still requires that decisions are made in a vulnerable person’s best interests and there is no change to the process for assessing a person’s capacity.
The key change, however, in my mind at least, is an exceptionally nuanced one. The clue is in the wording. There is, I feel, a clear shift of emphasis in the diction. If you compare the two titles, DoLs assumes that someone is going to be deprived of their liberty, while the LPS is much more positive in that it is focused on protecting a person’s liberty. That represents a huge sea-change in thinking.
Going forward, the main driver will be centred on a person’s mental, emotional and spiritual wellbeing. And, for this to happen, LPS requires that an appropriate person or an Independent Mental Capacity Advocate (IMCA) be appointed at the outset. However, the LPS process differs from DoLs in that under the DoLs code of practice appointing an appropriate person was a mandatory duty. In the LPS code of practice, however, the legislation states that responsible bodies should make every possible effort to provide service users with an appropriate advocate. So this change could in effect mean less protection for the individual, as the appointment of someone to support the individual may not be provided.
A second change is that that the LPS code of practice is applicable to anyone over 16 years of age, while LPS will also apply to many more settings. They are not restricted to residential care homes.
LPS orders travel with the person
The third significant departure from DoLs is that when an LPS order is granted, it is not fixed to one particular setting, Instead, the LPS will travel with the person wherever they go – even if they are transferred from a care setting to hospital.
I also welcome the fact that there is ‘no wrong door’ to inform the responsible body of a LPS issue. In other words, applicants do not need to submit a complicated and onerous form. Nor do they need to navigate their way through a maze of supervisory bodies and managing authorities. Under LPS, this has been abolished. Instead, they’ll be able to simply pick up the phone, or write an email to the local authority. The responsible body is then obligated to take the LPS concern forward.
A further change is that to relieve potential bottlenecks in the system, the number of assessments that need to be completed to satisfy LPS protocols has been cut from six to three. Care services will also be able to outsource assessments externally, but they must ensure that the assessor carrying out the work does so in an independent and unbiased capacity.
Regarding protocol, while LPS will in principle reduce the administration for applicants, it will introduce more checks and balances to ensure that the person being subject to any proposed restriction is fully involved and central to any decision making. For example, an extra layer of compliance has been added to the process in the form of the pre-authorisation review. This has been specifically designed to ensure that the responsible body does not ‘mark its own homework’ and will provide a level of objectivity to the process and will hopefully make the approval of an LPS more open, transparent and justified.
Preparation: Why care service should seek the help of a content provider
When the new legislation is finally introduced, like any new protocol, care services will need to hit the ground running. So, how should they do so? My advice for services is to firstly examine all of the DoLs arrangements currently in place and check that they understand the current position of each one. I would actively encourage them to appoint a designated Mental Capacity Champion with responsibility for looking at, and sharing the implications for the service, of the upcoming LPS.
Secondly, I would strongly recommend that services enlist the help of a compliance and content provider. The advantage of using a platform such as the one administered by Quality Compliance Systems (QCS), the leading provider of content, guidance and standards for the social care sector, is that it delivers updates whenever an area of regulation changes. But not only this. QCS provides all the tools that frontline staff need – including workforce development plans, risk assessments and auditing tools, to equip staff for their LPS journey.
Thirdly, it is not just the LPS that frontline staff need to be aware of. The Mental Capacity Act is central to DoLs and LPS and is intrinsically linked to both. Again, an industry-leading content provider such as QCS, can isolate a bespoke set of curated policies and procedures that each individual staff member will need.
Co-production around LPS can prove invaluable
I also think that coproduction is key. Care services should use the time they have between now and when the LPS ‘go live’, which the government still state will be April 2022, to proactively collaborate with other providers, and partner agencies, such as the local authorities to understand the local picture, to share concerns and to raise them. On this point, it is not too late. There will be one last consultation and when it is published, it will provide services with a final opportunity to share views and potentially influence the final LPS process.
Finally, there are a large number of questions that remain unanswered, and the phrase ‘the devil is in the detail’ has never been more appropriate. It is hoped that the upcoming consultation will clarify a lot of questions, but I am sure that it will pose more questions than answers. Even when the LPS ‘goes live’ there will be a transitional period and existing DoLS will continue to be valid until they are due for renewal. But there are also questions about resources, training and ensuring people are aware of what they need to do.
For a new code of practice that seeks to put the person at the centre of the process, it would be ironic if those responsible for implementing it feel distanced from the legislation. To avoid this being the case, the Code of Practice needs to ‘put more leaves on the trees’. Failure to do so may prevent the foundation seeds of LPS from flowering.
You can also learn more by catching up on our webinar in collaboration with the NCF titled ‘ Getting ready for the impending LPS consultation’ here.
The article was first published in the The CMM