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Unanswered questions from the LPS

Care in the home: carer helping elderly lady down the stairs

In the second 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 the implications for practice.

The Liberty Protection Safeguards (LPS) is the forthcoming replacement to DoLS, and is set to eradicate the bureaucracy and inaccessibility of the current framework, aiming to cover all care settings including supported living and private domestic homes. LPS will apply to all those aged 16 and above, who lack capacity to consent to care arrangements that give rise to a deprivation of their liberty.

On the horizon

After a long period of waiting, the government has finally released details of draft codes of practice for the updated Mental Capacity Act. These have caused much debate as to how workable the new framework will prove to be, particularly as the specialist Best Interest Assessor (BIA) role is vacated and the task of completing the three LPS assessments will be assigned to the registered health and social care professionals who may be already working with an individual, or who may need to be allocated specifically under LPS.

There is the new Approved Mental Capacity Professional (AMCP), but the AMCP will only be involved in specific circumstances – mainly when there is a reason to believe the person is objecting to the arrangements.  

This in theory, could be a very good thing, in that it redirects the onus to follow the Mental Capacity Act away from specialist assessors, back towards those already working with a person, increasing the accountability to make sure the incapacitated person’s voice is heard; that capacity is formally assessed where relevant and that all options are considered in line with their wishes and a least restrictive approach. This should all be done before any decision to provide restrictive care is made. 

But these legal obligations are nothing new; they are already in place via the Mental Capacity Act 2005. Though sadly the MCA is not always adhered to within health and social care service provision, even following CQC inspections (see here for an example discussed on Twitter). This makes a strong case for a more robust framework which re-emphasises that the business of promoting rights and choice under the MCA, is not limited to just Best Interest Assessors, or even Social Workers.

Unanswered questions

Given how much we’ve learnt about the proposed changes to MCA and the Code of Practice, we still have several major questions that are yet to be answered

  • Given the extent of the prospective changes (not only to roles and processes but also a cultural transformation across all sectors), will the LPS be effective?
  • How will the value of LPS be measured? Will it simply be by the number of authorisations put in place, or will there be an exploration of the person’s subjective experience of having LPS in place in terms of what difference it makes to their daily life? Will there be a discernible or meaningful effect felt? 
  • How will LPS be applied to the wider community; even in family homes? 

Deprivations of liberty in the family home

Given all of the unanswered questions, there remains for me one outstanding elephant in the room, namely: deprivation of liberty in the family home.

It is quite understandable that for most people the mere idea of being deprived of liberty in your own home is somewhat taboo, and the legal concept of DoLS/LPS doesn’t quite sit comfortably in the family home context.

Indeed, some may wonder, what is actually being achieved by the state invading the private family domain? What does this achieve other than redefining family care within the legal language of institutions, so that it may be governed as such?

This really is a contentious issue, and as the case of ‘AEL‘ shows what kind of message is received by a family member when his daughter was judged to be deprived of her liberty in their family home. But more importantly, I wonder what effect the Court of Protection proceedings had on his daughter? Did she feel any benefit?

I do agree with Dr Lucy Series in that it feels transgressive insofar as it tars family life with the same brush as ‘institution’ and realistically, where can a person truly be free if they are living in their own home with family?

A Case Manager’s perspective

I recently began a new role as a Case Manager within personal injury litigation, where my client base would predominantly be those with acquired brain injury seeking a substantial legal claim (or following settlement).    

Given this new role, I am now more distinctly aware of situations where restrictive care arrangements may be in place in a private home, but where support requirements might not have been assessed or funded by the local authority, or health commissioning. 

The care may be funded entirely from the proceeds of catastrophic injury compensation, or may be fully provided by the family.

The ‘acid test’ may well be met in some of these situations, without the knowledge of the Local Authority, yet because of the involvement of the court (due to the claim, or due to the appointment of a legal professional as a financial deputy), the arrangements would still be ‘imputable to the state’, thus engaging the need for consideration of an independent check of the arrangements. See here for a summary of relevant case law.

With all of this in mind, join me for the final part of my blog series in which I will consider further views of LPS as streamlining and pragmatic tool. I will also look at the potential for LPS to cause harm if used incorrectly.

About the author

Eleanor Tallon is Case Manager at Social Return and Independent Best Interest Assessor. She can be found on LinkedIn. She also Tweets @Eleanor_Tallon

Guest blogger Eleanor Tallon

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