New Liberty Safeguarding Protection
Mental Capacity (Amended) Act 2019
The final stage of the LPS Bills was completed on 24 April. The LPS is likely to come into force spring 2020 but for the first year DOLs will run alongside LPS to allow implementation.
Liberty Protection Safeguards (LPS)
- LPS does not contain a definition of deprivation of liberty (just like Dols) Therefore the key references point will continue to be Supreme Court ruling ‘ Cheshire West’ The new LPS Code of Practice will provide guidance on case law when a person may be considered to be deprived of their liberty.
- LPS will authorise a deprivation of liberty but not care or treatment ( just like Dols) Care providers will still have to assess the person’s mental capacity to consent to care and treatment (and make and record best interest decisions if the person lacks capacity)
- LPS will only authorise deprivation of liberty (like Dols) and not interference in private and family life (such a restrict contact with family ect)
- LPS can be used in any setting so will include community settings, domestic settings, supported living, transport, day service ect.
- Like Dols the person must have a mental disorder confirmed by a doctor for LPS to apply. This will no longer be done by a mental health assessor (this role has been removed) and will now be done by a GP or other doctor. It can be done in records that have been made for another purpose so if a doctor has written in the person’s (medical) notes. If there is no record the care provider must obtain a written statement from a doctor.
- LPS can only be used to authorise deprivation of liberty to prevent a risk to harm to themselves (not to others) – this is like the current Dols
- The commissioner or funder of care will be the responsible body – This means that NHS, CCGs and LA will all become responsible bodies. (For clients with continuing health funding the CCG will be the responsible body) The responsible body has to organise assessments, reviews, authorisations, renewals and monitoring,
- The LPS require at least 9 separate assessments to be completed and recorded prior to the responsible body carrying out its pre-authorisation review.
1 – mental capacity – competed by a professional ;
2 – mental disorder – completed by a doctor see above
In the case of these two assessments the responsible body can rely on previous assessments or assessments for any other purposes.
- the responsible body can decide if:
- it will make the necessary assessments and other evidence to be provided; or
- whether the care provider (care home manager (assume RM? ) should do so .
- If the care home manager is performing this role, then he or she is required to assess and provide a statement to the responsible body that the arrangements are a deprivation of liberty and that the deprivation of liberty is necessary and proportionate to prevent harm to the person. The person and others with an interest in their welfare should be consulted but this is not absolute.
- This information must be presented to the responsible body, which then decides whether to authorise arrangements based on this information (as well as other information, such as the pre-authorisation review that could be arranged by the responsible body). The person that does this authorisation does not need to meet the person.
- If the person is objecting to the care or placement a review must be undertaken by an Approved mental capacity professional (AMCP) who must meet the person.
- The LPS can last for up to 1 year, then reviewed for another year and then up for 3 years.
- Some people will have an appropriate person (family) appointed by the responsible body whose role is to support and represent the person They can not be involved with the care and treatment. The responsible body can appoint an advocate unless its considered in the person best interest not to have one.
More information and the bills see the link below.