What we know about the Liberty Protection Safeguards

In October next year, a new system known as the Liberty Protection Safeguards (LPS) is expected to replace the current Deprivation of Liberty Safeguards (DOLS).

LPS are intended to safeguard the rights of adults receiving care and support. The care may involve significant restrictions on their freedom and the system applies where an adult is considered to lack capacity to consent to the arrangements.

LPS will affect people over the age of 16 receiving care and support not just in hospitals and care homes, residential schools, and colleges, but also supported living, shared lives schemes, and in their own homes. Essentially, LPS can apply anywhere an adult receives care and support if the care significantly limits their freedom – even though the care may be really good and the right thing for that person. So, LPS will apply to significant numbers of adults with learning disabilities and/or autism and/or other conditions who receive care and support from other people.

The LPS are intended to ensure that adults are only subjected to restrictions which deprive them of their liberty if the person:

• has a mental disorder
• lacks capacity to consent to the arrangements
  and
• the arrangements are necessary and proportionate to preventing harm to the cared-for person

Who will be responsible for authorising care arrangements?

Responsibility for authorising deprivations of liberty in NHS hospitals or NHS funded care (including arrangements funded through Continuing Health Care) will shift to the NHS. Everywhere else, the local authority will be responsible: independent hospitals, residential homes, supported living, shared lives, or in an individual’s own home. However, where the cared-for person lives in a registered care home, local authorities will have the option to delegate much of the process to care home managers.

What situations and circumstances will the Liberty Protection Safeguards apply to?

At the moment, DOLS only apply to care homes and hospitals and to those over 18. Care in any other environment or for 16 or 17 year olds has to be authorised via the Court of Protection. So, one of the big changes is that the new system can authorise care arrangements wherever the person is receiving care, including across multiple locations and transport between them. Care arrangements for anyone over 16 will be able to be authorised via the LPS system.

The new system is also intended to work alongside care planning rather than being something done after arrangements are in place. This means that care arrangements which restrict people’s rights to the extent that they are considered to be ‘deprived of their liberty’ should be authorised before the care is actually put into place.

How long can an authorisation last?

At first, up to 12 months (as at present). But, later on, authorisations can last for up to 3 years at a time.

What happens if the person moves or their care plan changes?

Small variations are possible. For example, if a person became eligible for funding for healthcare instead of social care but their essential care plan didn’t change substantially. However, it appears that the intention is that more significant changes, such as an entirely new care setting, would require a fresh authorisation.

What help will people get if they want to object or challenge an authorisation?

At the moment under DOLS, it is compulsory for a Relevant Person’s Representative (RPR) – usually a relative – to be appointed and an Independent Mental Capacity Advocate (IMCA) has to be appointed where someone does not have anyone else to speak for them or if an RPR needs their support.

Under the new arrangements, the responsible body must seek to appoint an “appropriate person” (in most cases, likely to be a family member) to represent the person. If there is no appropriate person and the cared-for person requests an advocate, or, if the appropriate person requests one, then the responsible body must take “all reasonable steps” to appoint an IMCA. If the cared-for person lacks capacity to consent to the appointment of an IMCA, then the responsible body must take all reasonable steps to appoint one unless this would not be in their best interests.

Both the cared-for person and an appropriate person will only get an IMCA appointed if they request one if either has capacity to do so (or on a best interests basis if not). This is a significant weakening of the legal protections and risks repeats of Mark Neary’s experience of not knowing or being able to enforce his son’s rights.

Who will be looking out for the rights of adults subject to Liberty Protection Safeguards?

Under DOLS, Best Interests Assessors (BIAs) carry out assessments in all cases. Under LPS, Approved Mental Capacity Professionals (AMCPs), expected to be similar to the BIA role, will only assess cases where there is reason to believe the person objects to the arrangements, where the person is cared for mainly in an independent hospital, or where the responsible body decides to refer to an AMCP.

Other cases will merely be reviewed, probably as a paper exercise, by ‘independent reviewers’ (who may not have to have specialist training) who need only consider whether it is reasonable for the authorising body to decide that the authorisation conditions are met.

Are there any other changes to the Mental Capacity Act?

Yes, there is a new provision to detain a person in certain emergency situations.

What don’t we know yet?

Unfortunately, quite a lot. Crucially, we don’t know:

• Will responsible bodies actually have to provide and fund the provision of IMCAs in all situations where a cared-for person might need one to protect their rights?
• How long can “emergency” detention last for?
• Who will be allowed to do the various assessments?
• Who will pay for the assessments?

When will we know more?

We won’t have all the answers until the government publishes the regulations and code of practice – which won’t be until at least Spring 2020.

To find out more about LPS and how it differs from DOLS, join us at Learning Disability Today London where Yo Dunn will discuss this in plain English.