In May 2019, an Amendment to the Mental Capacity Act was passed, which stated that the Deprivation of Liberty Safeguards (DoLS) will be replaced by the Liberty Protection Safeguards (LPS). The purpose of change is to streamline processes and support a wider range of vulnerable people who do not have capacity for their care arrangements and are deprived of their liberties.
Please note: the change from DoLS to LPS has been postponed several times. The latest update from the Department of Health and Social Care says that LPS will be delayed ‘beyond the lifetime of this Parliament’. This means LPS is unlikely to be implemented until at least 2025. We will provide further updates as and when they arise.
Why are DoLS and LPS important?
In accordance with The Human Rights Act, Article 5: ‘everyone has the right to liberty and security’. What this means is that it is everyone’s legal right to be free of restrictions and safe. Both the DoLS and LPS provide a lawful procedure to direct if and when it is necessary to deprive a person of their liberty if they are lacking capacity to their care to safeguard them from harm to themselves. Further ensuring it is proportionate, being the least restrictive option. Without this in place, it would therefore be a breech of their human rights if a person who lacked capacity to consent to care and treatment was restricted.
What is staying the same as with DoLS?
- The person must have a mental disorder.
- They must meet the criteria of what a deprivation of liberty is through the Acid Test.
- The purpose of a deprivation of liberty must be to prevent the person from harm.
- The deprivation of liberty must be both necessary and proportionate.
- The deprivation of liberty must not conflict with the Mental Health Act.
What are the key changes of the LPS?
- LPS will broaden to cover a far wider range of locations, including community, supported living and shared lives.
- The position of a s12 doctor or mental health assessor to assess for a mental disorder has been removed. Therefore existing evidence of a mental disorder will be required, or a written statement by the GP.
- Age of application will be from 16 years of age.
- Authorisations can be longer in duration, initially up to a year, then after which it can be up to three years.
- Regular reviews will be put in completed by the responsible body, with the person having the right to an appropriate person or an IMCA to represent their voice, upholding their interests and wishes.
- LPS assessors will be front line staff where required.
- An Appropriate Person, formerly a Relevant Person’s Representative, is no longer a statutory obligation to assign. Therefore it is vital to assess the individual’s needs, referring for an advocate to represent if appropriate.
When to apply for an LPS authorisation
A deprivation of liberty must be applied for in advance, which can be completed for the person in question if they meet the following criteria:
- They do not have capacity to consent for their care and treatment arrangements.
- They have a mental disorder.
- The LPS deprivation of liberty authorisation is necessary and proportionate to prevent harm to the person.
- It has been established that it is within the person’s Best Interest.
How to apply for an LPS authorisation
The person(s) responsible for the application is the ‘Responsible Body’, formerly known as the ‘Supervisory Authority’. The responsible body will be the:
- Local authority for the nursing/care homes, supported living accommodations, private hospitals etc.
- Hospital manager for those within an NHS hospital.
- Local Integrated Care Board (ICB) for individuals who are outside of hospital but under Continuing Health Care (CHC).
The Responsible Body must ensure consultation with the person and relevant others to understand their views surrounding their care arrangements, including their values and wishes. They must inform the person of their rights.
Before an LPS authorisation can be given the following assessments must be completed, which will be arranged by the Responsible Body:
- Mental capacity (front line care professional, such as a social workers, occupational therapists, nurses and doctors).
- Mental disorder (doctor).
- The deprivation of liberty is proportionate and necessary to protect them from harm.
- Care arrangements constitute a deprivation of liberty.
- Care arrangements are in the person’s Best Interests.
- Consultation of the person and appropriate others.
- Any exclusions? i.e. Is there any conflict with the Mental Health Act, or would it be more appropriate to this individual’s case.
- Does the person require an Approved Mental Capacity Professional (AMCP) criteria? for example if they are objecting. If not, then any individual who is not directly responsible for the persons care from the responsible body can complete a review of the assessments.
- Can an Appropriate Person be identified (similar to the previous role of Responsible Person’s Representative, RPR), or will an Independent Mental Capacity Advocate (IMCA) be required?
- Age – 16 or over
After all steps of the assessment are completed and reviewed, the Responsible Body authorises the LPS.
What if a person objects?
- An AMCP will review, after which, if continuing to object, will proceed to the CoP in the same format as a DoLs.
- This remains a person’s right to object, no matter the perceived suitability of the environment and care support. It is good practice to request a review and follow this appropriate channel.
Please note: Further information surrounding the LPS is due to be released soon. Please keep see the Government website for the latest updates.
Glossary of terms and changes
- Relevant Person has been replaced by Cared For Person, referring to the person who is being deprived of their liberties under the LPS.
- Supervisory Bodies has been replaced by Responsible Bodies
- Best Interest Assessor (BIA) has been replaced by the role of an Approved Mental Capacity Professional (AMCP) who will be required if the person is objecting to their care arrangements to carry out the pre authorisation review.
- Relevant Person’s Representative has been replaced by an Appropriate Person and is no longer a statutory duty to appoint. The Appropriate Person can be identified by the Responsible body, who must be confident would represent the person while not being directly engaged in the provision of care or treatment.