A ‘Responsible Body’
The Local Authority or NHS body who fund a person’s care and support will be the ‘Responsible Body’ who 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.
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 and if there is nobody 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
- a Independent Mental Capacity Advocate (IMCA).
Undertaken by individuals who are willing and able to take on the role.
‘Consultation’
Before the arrangements to deprive someone of their liberty can be authorised by the Responsible Body, the Responsible Body must be sure that the following people have been consulted as part of the assessment process to ascertain the person’s wishes or feelings about the proposed arrangements:
- the person themselves
- anyone named by the person as someone who should be consulted
- anyone engaged in caring for the person or interested in the person’s welfare
- any attorney of a Lasting Power of Attorney (LPA) or an enduring power of attorney (EPA) granted by the person
- any deputy appointed by the Court of Protection
- any Appropriate Person
- any IMCA.
‘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 conditions are met, or whether it is reasonable for the Responsible Body to reach this conclusion.
The authorisation criteria are that:
- the person lacks 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 and support and who is suitably experienced and senior.
Within Devon County Council Responsible Body the Pre-Authorisation reviews will be scrutinised and authorised by an Approved Mental Capacity Professional or an LPS Team Manager.
Criteria for Authorisation
To determine whether the authorisation conditions are met, there are 3 assessments and determinations which must be carried out:
- The capacity assessment and determination.
- The medical assessment and determination.
- The necessary and proportionate assessment and determination.
Some of the assessments will require a suitably qualified professional to complete them.
Under LPS, the following steps must be taken for the Responsible Body to authorise arrangements which amount to a deprivation of liberty:
- The Responsible Body has complied with its’ duty to appoint an Appropriate Person or Independent Mental Capacity Advocate (IMCA).
- The person, and certain others, have been consulted as far as is practicable and appropriate, about the person’s wishes or feelings.
- The 3 assessments and determinations have been carried out.
- A Pre-Authorisation review has been carried out, and the appropriate determination made.
- The Responsible Body is satisfied that an authorisation should be given.
IMCA’s (Independent Mental Capacity Advocates)
An IMCA should be appointed if there’s no appropriate person, except when having an IMCA would not be in the person’s best interests.
AMCP (Approved Mental Capacity Professional)
The Approved Mental Capacity Professional (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.
LPS Reviews (In built explicit review of the authorisation)
The Responsible Body (DCC) will be required to specify, and carry out, a programme of ongoing and regular reviews to ensure the authorisation is still needed.
In some circumstances, it may also be necessary for the Responsible Body to carry out an unscheduled review if, for example, if there is a significant change in the person’s condition or circumstances.
The review could result in the Authorisation being terminated by the Responsible Body because, for example, the person does not need to be deprived of their liberty or the authorisation criteria are no longer met.
Court of Protection
If the person or anyone else, such as their family, IMCA or Appropriate Person, wishes to challenge the arrangements authorised under LPS, they can apply to the Court of Protection.