In the final part of a three-part blog series, Case Manager and Independent Best Interest Assessor Eleanor Tallon shares her thoughts on the forthcoming changes to LPS and how it might work on a practical level.
LPS as a streamlining tool
As it stands, any Deprivation of Liberty in the community – which cannot be prevented by seeking less restrictive care arrangements – would need to be reviewed further by an application to the Court of Protection.
With the forthcoming changes to LPS, the responsibility to review and authorise a ‘deprivation of liberty’ in the community will lie with the Local Authority or Local Health Board (if the care is commissioned by health).
LPS presents solutions to various predicaments. The three LPS Assessments are intended to be woven into the Care Act Assessment or NHS Assessment processes seamlessly, typically without any need for further assessment (other than a pre-authorisation review which may potentially be done as a tabletop exercise if there are no objections).
This then becomes a less onerous task than the labour-intensive six DoLS Assessments as currently completed by a BIA and Mental Health Assessor, meaning more people will be afforded the safeguards of representation and route of appeal whilst the Court of Protection is free to deal with only the most complex of cases that require such an intense level of scrutiny.
Similarly, it is less burdensome for those who don’t want to be involved in duplicate assessments, time and time again, when they may be ‘happy’ within their arrangements. (This is particularly cumbersome when the person may have lived for years in their own home with familiar carers and they may not present as objecting).
And of course receiving an authorisation for Liberty Protection Safeguards is a more palatable euphemism than DoLS, certainly for those cared for in their own homes as opposed to being ‘deprived of their liberty’ (sometimes by their own family).
But a gilded cage is still a cage.
And the question remains: how can we truly tell if a person is or isn’t objecting – especially when communication is severely limited?. There is also an ongoing concern that carers / providers may misinterpret or mitigate a person’s objections which would deny them access to an AMCP and more rigorous assessment.
This is a problem. But it’s also a problem that a majority of the current community DoLS applications are ‘stayed’ or some may follow the Re X process through the Court of Protection (as non-objecting).
At least by assessing significantly more people in the community through LPS, more people will have access to an external check on restrictive care practices and will have specific representation in place to consider and act on any objections / issues raised around personal rights to liberty.
LPS as a pragmatic tool
Sometimes a person/family may not see a need to be assessed under the Care Act, either because their needs are already met privately or because they have personal funds which exceed the financial threshold (so they wouldn’t get any state contributions).
But what if the family/carers /private support workers are caring for someone in a way that may deprive them of their liberty? The carers may be trying to do their best to support the person, but there could be an overarching mentality which is risk-averse and over-protective, there may be evidence of highly restrictive care, such as locking the person in, or not allowing them opportunities to go out and do more ‘risky’ activities when they want to.
It may simply be that the carers are less educated on what is required under the MCA which leads to the person becoming consistently constrained from experiencing any kind of decision space in their own lives, and they may genuinely want different things to what their carers think is ‘safe’.
These situations may be rare, or maybe they are more common and we just don’t know about them? In many care settings there isn’t always a dedicated oversight on whether the MCA is followed.
While the CQC would normally oversee agency-provided care, it only gets involved if there is a need for regulated support, such as personal and intimate care. It doesn’t get involved with privately-employed support workers who don’t provide personal care.
In these cases, the LPS presents a practical mechanism which bestows a specific duty on the Local Authority to work with a person and their family, and review restrictive care arrangements (where the criteria for the acid test is met).
LPS as a dangerous tool?
Lady Hale made it very clear in her Supreme Court judgement, that a Deprivation of Liberty can be defined in any setting, including a family home. So the machinery will be put to work there more frequently under LPS, though it will undoubtedly work differently without the formal care planning, record keeping and monitoring that you find in an institutional type of care setting.
And what about the AMCP role in terms of taking necessary actions to increase personal liberties within a family home?
There would need to be some very sensitive conversations held as there is a real risk of sabotaging relationships and creating conflict with families. But I would hope that many families would welcome support from professionals working under the remit of LPS, as long as the professional had the necessary skills to engage with a family network, respecting their cultures and traditions, whilst also holding the individual’s wishes at the heart of their efforts around supported decision making and best interest decisions.
Empowerment isn’t about striving for independence and ‘normalisation’; it must always be about walking in the shoes of the individual, understanding what’s actually important to them and helping them to achieve those things in the safest way possible, within their systemic network of support.
At this point I don’t think anyone has the answers to how LPS will work or whether it will be effective. Most of it, as they say, will inevitably ‘come out in the wash’. I suspect a flutter of litigation may occur following implementation of LPS, especially within private settings, which may then prompt further updates to the MCA codes.
So whether LPS is the right tool for the private domain, remains an unanswered question. The diplomatic answer is that any tool is better than no tool, but it must be handled with awareness and caution, as it could cause harm in the wrong hands.
Therefore, those involved in LPS, from support workers on the ‘coal face’ to the assessors, reviewers, authorisers, IMCAs and AMCPs; they all need to be masters of their craft when safeguarding liberty, listening to what the person actually wants and aiming to promote their choices and liberty, on both micro and macro levels.
A comprehensive programme of LPS training and clear guidance is essential, but also there desperately needs to be funding resources to ensure that where a person wishes and could safely be supported in a less restrictive way, there is the realistic means of achieving that. Without such resources, LPS may just become another tick box exercise, proclaiming to be ‘person centred’ and ‘human rights based’.
Using the mechanics of LPS, let’s make those buzz words mean something.