Getting ready for the impending Liberty Protection ...

This document is Copyright © Quality Compliance Systems Ltd. 2021 (Last updated 2021)

Getting ready for the impending Liberty Protection Safeguards (LPS) consultation

Building your knowledge of the current position on DoLS, LPS

Presented by:

Ed Watkinson, Regulatory SpecialistLiz Jones, Policy Director of the National Care Forum (NCF)


Why were Deprivation of Liberty Safeguards

developed (DoLS)?


Why were Deprivation of Liberty Safeguards developed (DoLS)?

Based in the Human Rights Act, Article 5 states that:

‘Everyone has the right to liberty and security of person. No one shall be deprived of his or her liberty [unless] in

accordance with a procedure prescribed in law'.


Why were Deprivation of Liberty Safeguards developed (DoLS)?

The Mental Capacity Act 2005

Allow restraint and restrictions to be imposed if in the persons ‘best interests’

Decided that extra safeguards needed if a person was being deprived of their liberty

Amendments to MCA in 2007

DoLS became law in 2009


When were the Deprivation of Liberty Safeguards (DoLS) introduced

Took a long time – 12 years from first legal ruling, the ‘Bournewood Case’ in 1997

Complex legal battles resulted in European Court of Human Rights deciding in 2004 that people without capacity cannot be detained and be deprived of their liberty without due process

Separated out the processes of the Mental Health Act and the detention of people

DoLS only apply in care home or hospital, all other situations Court of Protection decide


Why did DoLS need to change?



In 2014 a case know as ‘Cheshire West’ was

decided in the Supreme Court

‘A gilded cageis still a cage’

This established the ‘acid test’ as the principle for the

application for a DoLS

2 QUESTIONS: Is the person subject to continuous supervision and control?

Is the person free to leave?



Resulted in massive increase in applications

from 1,100 to 11,200per month

Process managed by under resourced Local

Authorities

Led to delays, applications not being

approved and the system becoming clogged and

impractical


What was the process to make changes?


What was the process to make changes?

Law Commission asked to investigate and report on what improvements were needed and how it could be done

Asked to suggest a revised framework that was ‘accessible and clear’

They reviewed the existing processes between 2014-17

They found that DoLS was an ‘administrative and bureaucratic nightmare’


Why did it take so long to get where we are now?


Why did it take so long to get where we are now?

Changes to initial content and necessary

regulatory process e.g revision to role of Care

Home Manager

National elections Brexit

LPS introduced in the MCA

(amendment) Act 2019

COVID-19Code of Practice development /

changes / mergersConsultation

Working towards April 2022 as

implementation...


What hasn’t changed?


What hasn’t changed?

Still based on Mental Capacity Act 2005

There is still the same processfor assessing capacity

Still required that decisions are made in the persons

‘best interests’

Same principles of ensuring that when people’s liberty is

restricted it is legal and follows due process


What will be changing with Liberty Protection

Safeguards (LPS)?


What will be changing with Liberty Protection Safeguards (LPS)?

Increased focus on the person and the individual’s well being e.g. Clear need for appropriate person / Independent Mental Capacity Advocate (IMCA)

Subtle change in emphasis from ‘deprivation’ to ‘protection’

Applicable to over 16 years old

Will be ‘transferable’ and relevant for a care arrangement, not just a specific location

Relevant for community settings including: dom care, supported living, extra care housing, not just care homes and hospitals

‘No wrong door’ to inform the Responsible Body



Only 3 assessments needed to meet conditions for LPS authorisations:

Mental Disorder Lack of capacity Restriction is ‘necessary’ and ‘proportionate’

And proportionate to the ‘likelihood’ and ‘seriousness’ of harm

Supervisory Bodies being replaced by Responsible Bodies

Managing Authorities abolished

Assessments need to show restriction on liberty is necessary to prevent harm to the person



The role of Best Interest Assessors (BIA) is going to be scapped and a new role of Approved Mental Capacity Professional (AMCP) is being established

The new Code of Practice will provide more detail about pre-authorisation reviews, but structure can be determined locally

The Responsible Body can ‘outsource’ the completion the 3 assessments to external bodies, including the care service itself

A ‘Pre-authorisation review’ has to be conducted before any restriction of liberty can be authorised.

The Responsible Body or the body (or person) involved in the ‘day-to-day’ care of the person cannot undertake this review.It may be completed by the AMCP in complicated situations



Presumption that in majority of cases where the LA is the commissioner of services that LPS will be considered as part of assessment

Urgent authorisation not part of LPS, but there are processes for the agreement to restriction of liberty when the provision of ‘life sustaining treatment or vital acts’ is necessary

Intention is that LPS authorisations will be done in advance (up to 28 days)

Vision is that LPS will be part of contract and care planning processes, rather than a bureaucratic ‘add on’

For self funders LA will still be the responsible body and need to oversee and authorise any restriction of liberty under LPS



Less need for the involvement of Court of

Protection as more arrangements and ages

are covered by LPS

More control and responsibility given to

Local Authorities

Code of practice for LPS will be merged with a revised MCA code of

practice.



For an LPS to be authorised the Responsible Body must have:

1. Appointed an ‘Appropriate Person’ or ‘Independent Mental Capacity Advocate’ (IMCA)

2. The person, and others, have been consulted

3. The 3 assessments have been completed

4. A pre-authorisation review has been done

5. The pre-authorisation review has stated that the restriction of liberty is necessary


What do we know about the basic

process?


What do we know about the basic process?

1. Referral to Responsible

Body (any means)

2. Responsible Body appoints appropriate person / IMCA

3. 3 assessments (a:Capacity b: Disorder c:Necessary and

proportionate).

These can completed by the service, Responsible Body

or other with skill and knowledge

4. Pre-authorisation review

to assess whether conditions for

authorisation have been met, this review cannot be

done directly by the Responsible Body

5. If agreed then Responsible Body grants authorisation

and lets person know within 72 hours

6. Authorisation granted for 12

months, reviewed and up to a maximum period of 3 years


What questions are still waiting to be answered?



When is the revised / joint Code of Practice going to be released for consultation?

What will the content / detail of the 25 chapters of the Code include?

Will there be enough time to meet the April 2022 deadline?

How are sufficient numbers of ‘Appropriate Persons’ and ‘IMCAs’ going to be found?

How specific issues such as respite stays, self funders and hospital admissions will be managed?



How services, especially those new to the need for getting authorisation, will be involved, and the local determination of processes?

Detail of the training requirements for Approved Mental Capacity Professionals (AMCP)?

Firming up of the change over process from DoLS to LPS

With no urgent authorisations under LPS how is assurance going to be provided regarding timescales and the management of new admissions?


What are the reported concerns about LPS

introduction?


What are the reported concerns about LPS introduction?

Lack of understanding about LPS by the people

that need to know

Changing priorities over time e.g COVID-19

Changing information e.g the role of Care Home

Managers

How the process enables and supports the person,

and others, to be fully involved in the LPS

decisions

Poor understanding of MCA, which the whole system is founded on.


What should you be doing now to prepare

for LPS?


What should you be doing now to prepare for LPS?

Regularly check the Department of Health and

Social Care (DHSC) for updates

Read and share DHSC factsheets published

https://www.gov.uk/government/publications/liberty

-protection-safeguards-factsheets

Sign up for newsletters and other information about LPS from NCF, SCIE and

Skills of Carehttps://www.scie.org.uk/m

ca/lps

https://www.nationalcareforum.org.uk/voice/liberty-

protection-safeguards-lps/Look at the DoLS you

already have in place and understand the current position, and when they

are due for renewal

Revisit understanding of the MCA with staff, and use

this as a basis for LPS Consider appointing MCA ‘champions’

https://www.gov.uk/government/publications/liberty-protection-safeguards-factsheets

https://www.scie.org.uk/mca/lps

https://www.nationalcareforum.org.uk/voice/liberty-protection-safeguards-lps/


Be prepared to respond to the consultation and think about what is important to

you. There is still an opportunity to influence

the final process

Draw up a workforce development plan, and

identify shortfalls in knowledge and

understanding – especially about Mental Capacity

Revisit and consider expanding the involvement of any advocacy agencies

that you work with

Have evidence to support the work you are doing to

prepare for LPS, will be useful for CQC

Talk to partner agencies (including the LA) to share

concerns and develop protocols

What should you be doing now to prepare for LPS?


What is the shortest possible timeline for LPS implementation?

Autumn 20: Publication of revised impact assessment

Summer 21: Public consultation on Code of Practice and regulations (12 weeks)

Late Autumn 21: Code of Practice and Regulations laid before parliament Late Autumn 21: Publication of consultation response

Winter 21: Publication of Code of Practice ( becoming very stretched to meet the April 22 ‘go live’ date

Spring 22: Approved Mental Capacity Assessor regulations coming into force

April 22: Implementation (although this becoming very tight considering the fact that consultation on the content of the Code of Practice hasn’t yet started)


Thank youTo find out more about QCS, visit

www.qcs.co.uk

For more information on NCF, visit

https://www.nationalcareforum.org.uk/

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