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Getting Ready for the New Liberty Protection Safeguards Legal Framework

Published on 22 February 2022 03:28 PM

The Deprivation of Liberty Safeguards are being replaced by a completely new system; Liberty Protection Safeguards (LPS).  LPS were introduced in the Mental Capacity (Amendment) Act (2019) and the Government are due to announce when they will come into force, following a public consultation on the new Code of Practice in 2022.

These significant changes will impact on the way we all work, when considering whether a person is experiencing a deprivation of their liberty and how this will be authorised.

What are the Liberty Protection Safeguards?

  • They will provide protection for people aged 16 or over, who lack mental capacity to consent to their care and treatment and are deprived of their liberty
  • The LPS will apply to individuals experiencing a mental disorder which includes but is not limited to; Dementia type illnesses, Autism, a Learning Disability or an Acquired Brain Injury.
  • The Liberty Protection Safeguards have been designed to put the rights and wishes of the individual concerned at the centre of all decision-making.

The LPS applies in a variety of settings

The Liberty Protection Safeguards will apply to individuals residing in hospitals, Care Homes and domestic settings who need to be deprived of their liberty.

Domestic settings include:

  • the person’s own home and family home
  • shared lives
  • supported living

This change ensures that all individuals who need to be deprived of their liberty will have their rights protected under the Liberty Protection Safeguards, regardless of where they reside.

What assessments are needed to authorise a deprivation of liberty under Liberty Protection Safeguards?

  1. a capacity assessment
  2. a ‘medical assessment’ to determine whether the person has a mental disorder
  3. a ‘necessary and proportionate’ assessment to determine if the arrangements are necessary to prevent harm to the person and proportionate to the likelihood and seriousness of that harm

There is greater involvement for families:

There will be an explicit duty to consult those caring for the person and with those interested in the person’s welfare.

There will be an opportunity for a family member or someone else close to the person, if they are willing and able, to represent and support the person through the process as an “Appropriate Person”.

Family members or others close to the person will also be able to raise concerns throughout the process and in response to any authorisation of a deprivation of liberty under LPS.

The LPS introduces the ‘Responsible Body’

The ‘Responsible Body’ is responsible for authorising a deprivation of liberty   There will be different Responsible Bodies in different settings. It could be an NHS Trust or Clinical Commissioning Group and in other cases it could be the Local Authority.

The LPS introduces the Approved Mental Capacity Professional (AMCP)

 Where the person objects to their care and treatment at the specified place, (or the care is provided in an independent hospital), the case must be considered by an Approved Mental Capacity Professional (AMCP).

This provides an additional protection.  The Responsible Body may also refer other cases to the AMCP. The AMCP can accept those referrals and consider those cases too.

The AMCP will review the information on which the Responsible Body relies, meet with the person if appropriate and practicable, and complete consultation if appropriate and practicable.

What is Devon County Council Adult Social Care doing in preparation?

Devon County Council has set up an LPS Project Group to ensure the Local Authority is prepared for LPS and its new statutory duties. Importantly the group are looking at what the change to LPS means for the person themselves, staff, providers and wider services.

If you are interested and want further reading at this point, here is a link to the Department of Health’s LPS factsheet, which explains in more detail about the LPS here.

For further information and updates please find the link our Devon County Council Website: The Mental Capacity Act Deprivation of Liberty safeguards | Devon County Council