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Liberty Protection Safeguards - What's Happening?

This page was last updated on 5th September 2021.

What do we know so far?

The Mental Capacity (Amendment) Act 2019 received the Royal Assent on 16th May 2019. The purpose of the Act is to abolish the Deprivation of Liberty Safeguards (DoLS) and to replace them with a completely new system, the Liberty Protection Safeguards (LPS). This system will apply to England and Wales only. The main points of the LPS are:

• One scheme will apply in all settings (eg care homes, nursing homes, hospitals, supported living, people's own homes, day services, sheltered housing, extra care, Shared Lives etc).
• The LPS will apply to anyone aged 16+.
• There will be no statutory definition of "deprivation of liberty" under LPS; therefore the "Acid Test" set by the Supreme Court in the "Cheshire West" case remains (click here for more details on that case).
• The role of "Supervisory Body", which authorises deprivations of liberty, will be abolished. It will be replaced by the "Responsible Body". There will be different Responsible Bodies in different settings. For some cases the Responsible Body will be the NHS Trust; in other cases the role will be filled by the Clinical Commissioning Group (or Local Health Board in Wales); and in other cases still it will be the local authority.
• There will only be 3 assessments: the "Capacity" assessment, the "Medical" assessment and the "Necessary and Proportionate" assessment.
• In certain circumstances the Responsible Body may ask a care home manager to organise the assessments. This proposal was abandoned in November 2020
• There will be a brand new role of Approved Mental Capacity Professional to deal with more complex cases.
• There will be an expansion of the role of the Independent Mental Capacity Advocate.

Timescales

The Government announced on 16th July 2020 that the original implementation date for LPS (1st October 2020) would be postponed until April 2022. Read the full ministerial statement here.

Various Regulations need to be written to accompany the Act. These cover topics such as training for Approved Mental Capacity Professionals, transitional arrangments and who will regulate the LPS scheme. 

There will also be a brand new Code of Practice. 

There will be a 6 month gap between the final versions of the Code of Practice, and the Regulations, being published, and the implementation of LPS. 

(And remember, the Code of Practice for the main Mental Capacity Act is also being revised at present).

Staff training - when, what and where? 

It's difficult to give hard and fast rules on this. Do you start training your staff now, do you wait until the draft Regulations and Code are published, do you wait until the final versions of the Regulations and Code are agreed ... ?

We are aware of differing advice that is circulating at present, eg Skills for Care has advised waiting until everything is published. The danger of waiting, of course, is that you might leave yourself very little time between training your staff and actually implementing the LPS. We are certainly happy to deliver training now, and indeed several customers have booked this with us.

Also what type of training is relevant for your different staff members? Do they need in-depth knowledge and understanding of the new scheme, or just a basic awareness? Again, we can't tell you for sure.

One thing we can say is that the training for the new AMCP role will be set in the Regulations, so you definitely can't move forwards with training for that until those Regulations are published. The Regulations may well also specify some sort of "conversion" arrangements for existing Best Interests Assessors.

Although the Regulations and Code are yet to be published, that doesn't mean that everything about the LPS is "up in the air". The Act itself contains lots of details about the new scheme, and those won't change (unless Parliament decides to amend the Act, which is very unlikely). Therefore it is perfectly possible to deliver training now, and we have already begun doing so with several customers. 

For convenience, we have developed various distinct training sessions, aimed at different groups of professionals. Please click on each one for a suggested outline:

The Government published an Impact Assessment in 2021 which acknowledges there will be significant staff training costs in bringing in the LPS. It is likely that funds will be made available in due course to cover some of that cost (as was the case when the DoLS were introduced in 2009).

We can of course make other arrangements to suit you, but we think this gives you a starting point to consider your needs. 

We can deliver any of these sessions in-house - ie at your venue. Or virtually using Zoom, MS teams etc. Our trainers have received training from Tim Spencer-Lane (see above) and he continues to advise us on the accuracy of our materials.

And as mentioned above we are still deciding whether to run some more briefing sessions in different locations during late 2021 or early 2022.

If you'd like to have an informal chat about your LPS training needs please don't hesitate to call us on 02380 970 914, or email using the contact form in the bottom left corner of this page.

LPS Briefing Sessions, Summer 2017 and 2019

As many of you will know, over the Summer of 2017, and again in 2019 we teamed up with Tim Spencer-Lane to run a series of half-day briefing sessions on the Liberty Protection Safeguards.

Tim is a lawyer who specialises in mental health and mental capacity law. He is currently the Government's legal advisor on the Mental Capacity Act and the Liberty Protection Safeguards, attached to the Department of Health & Social Care.

In 2017 in total we delivered 10 sessions in 6 different venues across England and Wales. Around 400 people attended. In 2019 in total we delivered 16 sessions, in 9 different venues across England and Wales. Around 650 people attended. 

We are considering running a few more sessions in the future. Most likely in the Autumn of 2021 (to cover the draft Code of Practice). We haven't set the dates yet as we are not sure when the Regulations, and the Code of Practice, will be published. We will of course let you know as soon as we have decided. Watch this space ...

Links

• Here's a blog from the Gov.uk website on the transition from DoLS to LPS, with some interesting comments underneath
• LPS Factsheet 1 issued by the Department of Health & Social Care in September 2020
• LPS Newsletter 2 issued by the Department of Health & Social Care in September 2020
• In November 2020 the DHSC launched a document "collection" page to store all relevant LPS documents, updates etc
• LPS Factsheet 2 issued by the Department of Health & Social Care in November 2020
• LPS Newsletter 3 was issued by the Department of Health & Social Care in November 2020
• The revised Impact Assessment was issued by the Department of Health & Social Care in January 2021. This makes a guesstimate of the numbers of people involved, costs, resources etc
• LPS Newsletter 4 was issued by the Department of Health & Social Care in January 2021
• LPS Newsletter 5 was issued by the Department of Health & Social Care in March 2021
• 6 more factsheets were issued by the Department of Health & Social Care in June 2021. These cover:
  • Criteria for authorisation
  • Appropriate Person and IMCAs
  • The Approved Mental Capacity Professional Role
  • Life-sustaining treatment or vital acts
  • Authorisations, renewals and reviews
  • The right to challenge an authorisation in court
• Also in June 2021 the DHSC published some guidance on staff training in preparation for the implementation of LPS
• Here's a note dated 6th July 2021 from Alex Ruck-Keene on the implications of the proposal to abolish CCGs in England.