Liberty Protection Safeguards - What's Happening?

This page was last updated on 27th May 2020.

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.
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.

LPS Briefing Sessions, Summer 2019

Tim Spencer-LAne

As many of you will know, over the Summer of 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 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 Spring of 2021. 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 ...

Timescales

The Government announced during the summer of 2019 that the LPS will be implemented from 1st October 2020. The plan is that existing authorisations under DoLS would continue until their expiry date, at which point they would need to be authorised under LPS. No new Standard or Urgent DoLS authorisations could be made after 1st October 2020.

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. The plan was for the draft Regulations to be issued towards the end of 2019, with the final versions agreed by Parliament in the Spring of 2020.

There will also be a brand new Code of Practice. Again, the plan was for the draft Code to be issued towards the end of 2019, with the final version agreed by Parliament in the Spring of 2020.

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

With 2019 now well in the past, and no sign yet of the draft Code or the draft Regulations, it seems more and more likely that the Government will have to make an announcement in Spring 2020 about whether they intend to stick with the current timescale, or delay the introduction of the LPS. And of course the lockdown caused by the Coronavirus pandemic has further affected planning. It seems inconceivable that the original implementation date of 1st October 2020 will be maintained. However, as of today, no decision has been taken to delay the implementation of LPS.

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

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 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 seems 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 three distinct training sessions. Please click on each one for a suggested outline:

"Understanding & Implementing the Liberty Protection Safeguards" (a full-day training session)
"Understanding the Liberty Protection Safeguards" (a half-day training session)
"Understanding the Liberty Protection Safeguards" (a short briefing session for large groups)

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. 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 2020.

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.

Links

Here's a blog from the Gov.uk website on the transition from DoLS to LPS, with some interesting comments underneath