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Liberty Protection Safeguards: Frequently asked questions

What are the Liberty Protection Safeguards (LPS)?

The LPS will provide protection for people aged 16 or over, who lack mental capacity to consent to their care and support arrangements and where these arrangements amount to a deprivation of their liberty.

The LPS have been designed to put the rights and wishes of the individual concerned at the centre of all decision-making.

Why are the LPS coming?

The LPS are the government’s response to the increased number of Deprivation of Liberty Safeguards (DoLS) applications following the Supreme Court ruling in Cheshire West [2014].

When are they due to start?

The LPS were due to come into force on 1 April 2022 but the target date for implementation has been delayed by the government. No new date has been provided.

What is the approved mental capacity professional (AMCP) role?

The AMCP is a new, specialist role providing enhanced oversight for those people who need it most.

AMCPs will be independent, registered professionals with additional specialist training.

In some cases where a person is objecting to their support arrangements or they are residing in a private hospital then a referral to an AMCP must be made to determine, based on the evidence provided whether the authorisation conditions are met.

When is the Court of Protection used for the LPS?

If the person or anyone else, such as their family, IMCA or appropriate person, wishes to challenge the care and support arrangements authorised under the LPS, they can apply to the Court of Protection.

What are the assessments needed to authorise a deprivation of liberty under the LPS?

  1. a capacity assessment
  2. a ‘medical assessment’ to determine whether the person has a mental disorder (as defined in the Mental Health Act (1983))
  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

The assessment process will be embedded into existing care planning (for example under the Care Act 2014) and it will be easier to use existing valid assessments, where reasonable and appropriate.

In what settings do the LPS apply?

The LPS will apply to individuals residing in hospitals, care homes and domestic settings who need to be deprived of their liberty in order to provide their care and support. 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 be protected under the LPS, regardless of where they reside, without the need to go to court.

What is a ‘Responsible Body’?

The Local Authority or NHS body that funds a person’s care and support will be the ‘Responsible Body’ that will authorise arrangements for care or treatment under the LPS. For people who fund their own care, the Local Authority where the care home is located will be the Responsible Body.

Where it’s felt that an authorisation may be needed, the Responsible Body must be informed so the LPS process can be triggered.

Anyone can make a referral and the process could be very informal, for example, a simple email, or official forms can be used.

What does ‘greater involvement for families’ in the LPS mean?

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.

What is an ‘appropriate person’

The appropriate person is a non-professional who provides representation and support for the person during the LPS process and throughout the duration of any authorisation given.

This is a key role in securing the person’s views, wishes and feelings about their care and support arrangements.

It is the Responsible Body’s responsibility to determine if there is someone suitable to fulfil the requirements of the appropriate person role. If there is nobody identified then they will instruct an advocate.

The appropriate person role will normally be carried out by someone who is close to the person. For example:

  • a family member
  • a volunteer from a third-sector organisation
  • an Independent Mental Capacity Advocate (IMCA)

Undertaken by individuals who are willing and able to take on the role.

What is ‘pre-authorisation review’?

Once professionals have completed the consultation, assessments and determinations, a pre-authorisation review will be required.

The pre-authorisation review must determine whether the authorisation criteria are met, or whether it is reasonable for the Responsible Body to reach this conclusion.

What are the authorisation criteria that need to be met?

It is that:

  1. the person lacks the mental capacity to consent to the arrangements
  2. the person has a mental disorder, as defined by the Mental Health Act (1983)
  3. the arrangements are necessary and proportionate; that is, the arrangements are necessary to prevent harm to the person and proportionate to the likelihood and seriousness of the risk of harm to the person

The pre-authorisation review needs to be scrutinised and authorised by a person independent from a person’s care or support and who is suitably experienced and senior. Within Devon County Council Responsible Body, pre-authorisation reviews will be scrutinised and authorised by an approved mental capacity professional or an LPS team manager.

What is Devon County Council doing in preparation?

We have a project group looking at:

  • what this means for the person themselves, staff, providers, services
  • enabling LPS implementation across Adult Social Care
  • the changes that are needed to meet our new statutory duties
  • what functions the central LPS Coordination Service will provide
  • ultimately better outcomes for people who are being deprived of their liberty

If you are interested and want further reading at this point, the Department of Health’s LPS factsheet explains the LPS in more detail.

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