In the sixth part of our series of blogs on change to the MCA Code of Practice, we turn to one of the most looked-for discussions: the Liberty Protection Safeguards (LPS).
Deprivation of Liberty
According to Chapter 12 of the consulation, a Deprivation of Liberty is a legal authorisation that is put in place to protect both the individual and the staff supporting them. A Deprivation of Liberty can be determined if it meets the criteria for the Acid Test. That is if:
- The individual does not have ‘freedom to leave’, in regards to changing their residence. This is determined to be a confinement, a restriction.
- The individual is under ‘continuous supervision and control’, in terms of being monitored and supported throughout the day, which includes Best Interest decisions in place to support decision-making on their behalf in areas where they lack the Mental Capacity to do so themselves.
On top of which, a Deprivation of Liberty can only be applied for if the individual does not have the Mental Capacity to give valid, informed consent for care and treatment that is necessary and proportionate to their needs.
Important note: an LPA or Next of Kin cannot give consent on the individual’s behalf.
Liberty Protection Safeguards (Chapter 13)
One of the most important changes within the draft Code of Practice is the introduction of the Liberty Protection Safeguards (LPS). This is the new process by which a Deprivation of Liberty for an individual is authorised.
The process is designed to emphasise the five principles of the MCA as a core component to be upheld, while also empowering the individual to be included and heard throughout the process.
One of the key benefits of the LPS is that it aims to reduce the administrative burdens on all parties by streamlining the authorisation to be included within existing processes such as Care Act Reviews. It also requires fewer stages to be completed, again condensing workloads.
Another key change with the LPS is that it covers a far wider range of settings than the DoLS process it replaces. This reduces the need to submit requests through the Court of Protection. These settings include: home environments, shared lives, supported living, care settings, hospitals and education. It is now also applied to all individuals aged 16 years and above.
If an individual falls outside of these circumstances or age limits, a Court of Protection authorisation can still be requested to support and protect the individual if suitable to do so.
Who should trigger the LPS process, and when?
Any person can and should trigger the LPS process, including members of the care team, housing officers, health care professionals and others. This can be done alongside other statutory processes and procedures such as Care Reviews, Care Planning, CHC meetings, Discharge Planning etc.
If there are not statutory processes and procedures already occurring, such as in the case where friends and family may be providing care, then the Responsible Body is directed to work alongside those providing care. The Responsible Body should be informed of this need by any third party if they are not already aware. This is to uphold best practice and lawful arrangements that are reasonable, proportionate and necessary.
The Responsible Body
The Responsible Body is the state organisation that is deemed responsible for authorising and monitoring an LPS authorisation. They can be the Local Authority, Clinical Commissioning Group (CCGs, soon to be replaced by Integrated Care Systems [ICS]), NHS trust or NHS Foundation Trust, Local Health Board, or others.
Summary of the condensed LPS authorisation process
The LPS process is a smaller series of assessments and determinations, compared to DoLS, that are aimed to be completed within 28 days of referral.
- On referral, the Responsible Body will consider if the case is suitable for the LPS process, considering if another legal frameworks may be more appropriate if necessary, such as the Mental Health Act, or indeed none at all.
- The Responsible Body will then confirm if they are the correct Body to be authorising this arrangement. There is no ‘wrong door’ for referrals. This means that it can be referred straight onto the appropriate Body.
- After which, the Responsible Body is directed to acknowledge acceptance or alternate processes within 5 working days, or as soon as practical.
- At this point that an Appropriate Perion should be assigned. The case may need to be referred to an IMCA if no Appropriate Person can be identified.
- At this point, the assessment process commences and should be completed within 21 days, in order to protect the individual’s Article 5 Rights. The assessments and determinations require the following:
- MCA for the decision of care and treatment.
- Medical assessment and determination of a form of Mental Disorder.
- Assessment and determination of whether care and treatment arrangements are necessary and proportionate to prevent harm and serious injury to that individual.
- The draft authorisation should then be shared with the person assigned by the Responsible Body to complete the pre-authorisation review. This does not have to be a health and social care professional, but they must have an understanding of Mental Capacity Act (2005) and the LPS. Furthermore, they should not be involved in the day-to-day care of the individual in question, including the provision of treatment. Nor should they have any connection to the care home.
- In specific cases, an Approved Mental Capacity Professional (AMCP) will be required. They will be assigned to review and complete further consultations in cases of a complex nature or where it is apparent the individual is objecting to their care and treatment.
- The Responsible Body then makes the final decision on authorisation. These can be up to 12 months for both the first and second authorisations, after which, they can be up to 36 months. Length of time should always be determined by the individual’s circumstances and needs. The authorisation will include a named Appropriate Person or IMCA, any conditions if required, and a programme for reviews at specific times during that period.
It is important to note that any authorisation should be reviewed if there are significant changes to the individual’s health, care and/or treatment. Relevant parties should also be kept updated, especially if forms of deprivation have been adjusted.
A new authorisation should be applied for one month prior to its end date in order to ensure a smooth transition with no lapse in dates.
The new proposed Code of Practice places a much greater emphasis on inclusion, empowerment and duty to consult. This suggests the aims to uphold a person-centred approach, in line with best practice, though it remains unclear how effective this will be on its launch.
While the Code clearly states that the individual, and certain relevant others, should be consulted throughout the LPS process, it also says this should happen if practically possible. Will all professionals make all reasonable and practical steps to engage with relevant individuals, while upholding Principle 2 of the Act?
The purpose of the duty to consult is one I thoroughly agree with, however, I am all too aware of the pressures of caseloads and other challenges such as staff members being able to grade and adapt to individuals’ needs as appropriate.
Hopefully as care professionals familiarise themselves with the new LPS process, they will be sure to recognise, understand and take account of the individual’s wishes and feelings, supporting their voice at the most vulnerable of times.