Update: Liberty Protection Safeguards

The second Liberty Protection Safeguards (LPS) update was published by the Department of Health and Social Care on 28 September. You can view it here. It sets out a timetable for development and implementation of the LPS.

The key points are as follows:

• To ensure the principles of the Mental Capacity Act 2005 are embedded in the LPS the Government intends to combine the LPS Code with an updated MCA Code to produce one joint Code of Practice. 
• This updated joint Code of Practice is due for publication (and public consultation) in Spring 2021.
• The consultation response is due for publication in Autumn 2021 when the Code of Practice and Regulations will be laid before Parliament.
• The aim is to publish the Code of Practice in Winter 2021.
• The AMCP Regulations are due to come into force in January 2022.
• The aim is for full implementation of the LPS by April 2022.

As well as this bi-monthly newsletter, the Department's LPS policy team intends to produce a series of factsheets. The first factsheet provides an overview of some of the key changes to expect from LPS, such as the following:

• The LPS will provide protection for people aged 16 and above who need to be deprived of their liberty in order to enable their care or treatment and lack capacity to consent to their arrangements.
• Three assessments will need to be undertaken covering: (i) capacity; (ii) a “medical assessment” to determine whether a person has a mental disorder; and (iii) 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 will be an explicit duty to consult those caring for the person and those interested in the person’s welfare.  A family member or someone close to the person can be appointed an “Appropriate Person” to support the person through the process.
• An Approved Mental Capacity Professional (AMCP) must consider the case if there is reason to believe that the person would not wish to reside or receive treatment at the specified place or if the person is receiving care or treatment mainly at an independent hospital. 
• The LPS will apply to individuals in domestic settings who need to be deprived of their liberty, including those in their own home, a family home, or a shared lives or supported living setting.
• The Responsible Body for a person where the arrangements are mainly taking place in an NHS hospital will be the NHS Trust responsible for the hospital.  Where the arrangements that result in a deprivation of liberty are being carried out mainly through NHS Continuing Healthcare, the Responsible Body will be the relevant Clinical Commissioning Group.