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This document is Copyright © Quality Compliance Systems Ltd. 2021 (Last updated 2021)
Getting ready for the impending Liberty Protection Safeguards (LPS) consultation
Building your knowledge of the current position on DoLS, LPS
Presented by:
Ed Watkinson, Regulatory SpecialistLiz Jones, Policy Director of the National Care Forum (NCF)
This document is Copyright © Quality Compliance Systems Ltd. 2021 (Last updated 2021)
Why were Deprivation of Liberty Safeguards
developed (DoLS)?
This document is Copyright © Quality Compliance Systems Ltd. 2021 (Last updated 2021)
Why were Deprivation of Liberty Safeguards developed (DoLS)?
Based in the Human Rights Act, Article 5 states that:
‘Everyone has the right to liberty and security of person. No one shall be deprived of his or her liberty [unless] in
accordance with a procedure prescribed in law'.
This document is Copyright © Quality Compliance Systems Ltd. 2021 (Last updated 2021)
Why were Deprivation of Liberty Safeguards developed (DoLS)?
The Mental Capacity Act 2005
Allow restraint and restrictions to be imposed if in the persons ‘best interests’
Decided that extra safeguards needed if a person was being deprived of their liberty
Amendments to MCA in 2007
DoLS became law in 2009
This document is Copyright © Quality Compliance Systems Ltd. 2021 (Last updated 2021)
When were the Deprivation of Liberty Safeguards (DoLS) introduced
Took a long time – 12 years from first legal ruling, the ‘Bournewood Case’ in 1997
Complex legal battles resulted in European Court of Human Rights deciding in 2004 that people without capacity cannot be detained and be deprived of their liberty without due process
Separated out the processes of the Mental Health Act and the detention of people
DoLS only apply in care home or hospital, all other situations Court of Protection decide
This document is Copyright © Quality Compliance Systems Ltd. 2021 (Last updated 2021)
Why did DoLS need to change?
This document is Copyright © Quality Compliance Systems Ltd. 2021 (Last updated 2021)
Why did DoLS need to change?
In 2014 a case know as ‘Cheshire West’ was
decided in the Supreme Court
‘A gilded cageis still a cage’
This established the ‘acid test’ as the principle for the
application for a DoLS
2 QUESTIONS: Is the person subject to continuous supervision and control?
Is the person free to leave?
This document is Copyright © Quality Compliance Systems Ltd. 2021 (Last updated 2021)
Why did DoLS need to change?
Resulted in massive increase in applications
from 1,100 to 11,200per month
Process managed by under resourced Local
Authorities
Led to delays, applications not being
approved and the system becoming clogged and
impractical
This document is Copyright © Quality Compliance Systems Ltd. 2021 (Last updated 2021)
What was the process to make changes?
This document is Copyright © Quality Compliance Systems Ltd. 2021 (Last updated 2021)
What was the process to make changes?
Law Commission asked to investigate and report on what improvements were needed and how it could be done
Asked to suggest a revised framework that was ‘accessible and clear’
They reviewed the existing processes between 2014-17
They found that DoLS was an ‘administrative and bureaucratic nightmare’
This document is Copyright © Quality Compliance Systems Ltd. 2021 (Last updated 2021)
Why did it take so long to get where we are now?
This document is Copyright © Quality Compliance Systems Ltd. 2021 (Last updated 2021)
Why did it take so long to get where we are now?
Changes to initial content and necessary
regulatory process e.g revision to role of Care
Home Manager
National elections Brexit
LPS introduced in the MCA
(amendment) Act 2019
COVID-19Code of Practice development /
changes / mergersConsultation
Working towards April 2022 as
implementation...
This document is Copyright © Quality Compliance Systems Ltd. 2021 (Last updated 2021)
What hasn’t changed?
This document is Copyright © Quality Compliance Systems Ltd. 2021 (Last updated 2021)
What hasn’t changed?
Still based on Mental Capacity Act 2005
There is still the same processfor assessing capacity
Still required that decisions are made in the persons
‘best interests’
Same principles of ensuring that when people’s liberty is
restricted it is legal and follows due process
This document is Copyright © Quality Compliance Systems Ltd. 2021 (Last updated 2021)
What will be changing with Liberty Protection
Safeguards (LPS)?
This document is Copyright © Quality Compliance Systems Ltd. 2021 (Last updated 2021)
What will be changing with Liberty Protection Safeguards (LPS)?
Increased focus on the person and the individual’s well being e.g. Clear need for appropriate person / Independent Mental Capacity Advocate (IMCA)
Subtle change in emphasis from ‘deprivation’ to ‘protection’
Applicable to over 16 years old
Will be ‘transferable’ and relevant for a care arrangement, not just a specific location
Relevant for community settings including: dom care, supported living, extra care housing, not just care homes and hospitals
‘No wrong door’ to inform the Responsible Body
This document is Copyright © Quality Compliance Systems Ltd. 2021 (Last updated 2021)
What will be changing with Liberty Protection Safeguards (LPS)?
Only 3 assessments needed to meet conditions for LPS authorisations:
Mental Disorder Lack of capacity Restriction is ‘necessary’ and ‘proportionate’
And proportionate to the ‘likelihood’ and ‘seriousness’ of harm
Supervisory Bodies being replaced by Responsible Bodies
Managing Authorities abolished
Assessments need to show restriction on liberty is necessary to prevent harm to the person
This document is Copyright © Quality Compliance Systems Ltd. 2021 (Last updated 2021)
What will be changing with Liberty Protection Safeguards (LPS)?
The role of Best Interest Assessors (BIA) is going to be scapped and a new role of Approved Mental Capacity Professional (AMCP) is being established
The new Code of Practice will provide more detail about pre-authorisation reviews, but structure can be determined locally
The Responsible Body can ‘outsource’ the completion the 3 assessments to external bodies, including the care service itself
A ‘Pre-authorisation review’ has to be conducted before any restriction of liberty can be authorised.
The Responsible Body or the body (or person) involved in the ‘day-to-day’ care of the person cannot undertake this review.It may be completed by the AMCP in complicated situations
This document is Copyright © Quality Compliance Systems Ltd. 2021 (Last updated 2021)
What will be changing with Liberty Protection Safeguards (LPS)?
Presumption that in majority of cases where the LA is the commissioner of services that LPS will be considered as part of assessment
Urgent authorisation not part of LPS, but there are processes for the agreement to restriction of liberty when the provision of ‘life sustaining treatment or vital acts’ is necessary
Intention is that LPS authorisations will be done in advance (up to 28 days)
Vision is that LPS will be part of contract and care planning processes, rather than a bureaucratic ‘add on’
For self funders LA will still be the responsible body and need to oversee and authorise any restriction of liberty under LPS
This document is Copyright © Quality Compliance Systems Ltd. 2021 (Last updated 2021)
What will be changing with Liberty Protection Safeguards (LPS)?
Less need for the involvement of Court of
Protection as more arrangements and ages
are covered by LPS
More control and responsibility given to
Local Authorities
Code of practice for LPS will be merged with a revised MCA code of
practice.
This document is Copyright © Quality Compliance Systems Ltd. 2021 (Last updated 2021)
What will be changing with Liberty Protection Safeguards (LPS)?
For an LPS to be authorised the Responsible Body must have:
1. Appointed an ‘Appropriate Person’ or ‘Independent Mental Capacity Advocate’ (IMCA)
2. The person, and others, have been consulted
3. The 3 assessments have been completed
4. A pre-authorisation review has been done
5. The pre-authorisation review has stated that the restriction of liberty is necessary
This document is Copyright © Quality Compliance Systems Ltd. 2021 (Last updated 2021)
What do we know about the basic
process?
This document is Copyright © Quality Compliance Systems Ltd. 2021 (Last updated 2021)
What do we know about the basic process?
1. Referral to Responsible
Body (any means)
2. Responsible Body appoints appropriate person / IMCA
3. 3 assessments (a:Capacity b: Disorder c:Necessary and
proportionate).
These can completed by the service, Responsible Body
or other with skill and knowledge
4. Pre-authorisation review
to assess whether conditions for
authorisation have been met, this review cannot be
done directly by the Responsible Body
5. If agreed then Responsible Body grants authorisation
and lets person know within 72 hours
6. Authorisation granted for 12
months, reviewed and up to a maximum period of 3 years
This document is Copyright © Quality Compliance Systems Ltd. 2021 (Last updated 2021)
What questions are still waiting to be answered?
This document is Copyright © Quality Compliance Systems Ltd. 2021 (Last updated 2021)
What questions are still waiting to be answered?
When is the revised / joint Code of Practice going to be released for consultation?
What will the content / detail of the 25 chapters of the Code include?
Will there be enough time to meet the April 2022 deadline?
How are sufficient numbers of ‘Appropriate Persons’ and ‘IMCAs’ going to be found?
How specific issues such as respite stays, self funders and hospital admissions will be managed?
This document is Copyright © Quality Compliance Systems Ltd. 2021 (Last updated 2021)
What questions are still waiting to be answered?
How services, especially those new to the need for getting authorisation, will be involved, and the local determination of processes?
Detail of the training requirements for Approved Mental Capacity Professionals (AMCP)?
Firming up of the change over process from DoLS to LPS
With no urgent authorisations under LPS how is assurance going to be provided regarding timescales and the management of new admissions?
This document is Copyright © Quality Compliance Systems Ltd. 2021 (Last updated 2021)
What are the reported concerns about LPS
introduction?
This document is Copyright © Quality Compliance Systems Ltd. 2021 (Last updated 2021)
What are the reported concerns about LPS introduction?
Lack of understanding about LPS by the people
that need to know
Changing priorities over time e.g COVID-19
Changing information e.g the role of Care Home
Managers
How the process enables and supports the person,
and others, to be fully involved in the LPS
decisions
Poor understanding of MCA, which the whole system is founded on.
This document is Copyright © Quality Compliance Systems Ltd. 2021 (Last updated 2021)
What should you be doing now to prepare
for LPS?
This document is Copyright © Quality Compliance Systems Ltd. 2021 (Last updated 2021)
What should you be doing now to prepare for LPS?
Regularly check the Department of Health and
Social Care (DHSC) for updates
Read and share DHSC factsheets published
https://www.gov.uk/government/publications/liberty
-protection-safeguards-factsheets
Sign up for newsletters and other information about LPS from NCF, SCIE and
Skills of Carehttps://www.scie.org.uk/m
ca/lps
https://www.nationalcareforum.org.uk/voice/liberty-
protection-safeguards-lps/Look at the DoLS you
already have in place and understand the current position, and when they
are due for renewal
Revisit understanding of the MCA with staff, and use
this as a basis for LPS Consider appointing MCA ‘champions’
This document is Copyright © Quality Compliance Systems Ltd. 2021 (Last updated 2021)
Be prepared to respond to the consultation and think about what is important to
you. There is still an opportunity to influence
the final process
Draw up a workforce development plan, and
identify shortfalls in knowledge and
understanding – especially about Mental Capacity
Revisit and consider expanding the involvement of any advocacy agencies
that you work with
Have evidence to support the work you are doing to
prepare for LPS, will be useful for CQC
Talk to partner agencies (including the LA) to share
concerns and develop protocols
What should you be doing now to prepare for LPS?
This document is Copyright © Quality Compliance Systems Ltd. 2021 (Last updated 2021)
What is the shortest possible timeline for LPS implementation?
Autumn 20: Publication of revised impact assessment
Summer 21: Public consultation on Code of Practice and regulations (12 weeks)
Late Autumn 21: Code of Practice and Regulations laid before parliament Late Autumn 21: Publication of consultation response
Winter 21: Publication of Code of Practice ( becoming very stretched to meet the April 22 ‘go live’ date
Spring 22: Approved Mental Capacity Assessor regulations coming into force
April 22: Implementation (although this becoming very tight considering the fact that consultation on the content of the Code of Practice hasn’t yet started)