Liberty Protection Safeguards: Frequently asked questions

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].

The target date for the implementation of LPS has been delayed by the government. The government published the draft of the Mental Capacity Act 2005 Code of Practice, which includes the guidelines for the new Liberty Protection Safeguards service or pathway for public consultation which ended in July 2022.

Devon County Council has responded to the consultation and fed back their comments on the draft Code of Practice. We are now waiting for the government to announce and confirm when the final Code of Practice will be published and when LPS will start.

In the meantime, Devon County Council will continue to work to the current Codes of Practice until the government confirms when the changes will come into force.

The AMCP is a new, specialist role. AMCPs will be independent, registered professionals with additional specialist training, and they will offer an important safeguard for people who lack mental capacity and whose care and support arrangements result in them being deprived of their liberty.

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 LPS authorisation conditions are met.

• • A capacity assessment.

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

• • 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 LPS will apply to individuals who need to be deprived of their liberty in order to provide their care and support in any setting. This includes:

• • the person’s own home and family home
  • care homes
  • hospitals
  • shared lives schemes
  • 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.

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.

Under the LPS 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 LPS 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.

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 a person’s views, wishes and feelings about their care and support arrangements.

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

Only individuals who are willing and able to take on the role can be the appropriate person and the Responsible Body must determine if there is someone suitable to fulfil the requirements of the role.

If there is nobody identified, then the Responsible Body must instruct an Independent Mental Capacity Advocate (IMCA) to support the person

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

In order to meet the criteria for LPS, the following must apply:

• • The person lacks the mental capacity to consent to the arrangements.

• • The person has a mental disorder, as defined by the Mental Health Act (1983).

• • 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, it is anticipated that pre-authorisation reviews will be scrutinised and authorised by an approved mental capacity professional or an LPS team manager.

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 and may be eligible for legal aid.

We have a project group looking at:

• • what LPS means for the person themselves, and what it means for staff, care providers and services

• • preparation for LPS implementation across Adult Social Care and for 16 and 17-year-olds who are deprived of their liberty

• • what changes are needed to meet our new statutory duties

• • what functions the DCC central LPS Coordination Service will provide

• • most importantly, ensuring the best 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.