Liberty Protection Safeguards Factsheets

The Liberty Protection Safeguards is a new scheme intended to replace the current Deprivation of Liberty Safeguards for people who are deprived of their liberty within the context of Article 5 of the European Convention on Human Rights.  Although delayed, the implementation of the new LPS scheme is April 2022 and there is still much to do before they can be implemented.  In Spring 2021, the Government intend to publish the draft Code of Practice and Regulations for a consultation period before the final version being published later in the year.  There are also Approved Mental Capacity Professionals to train ahead of the implementation date.

To help provide regular updates, the Government has launched a website containing Liberty Protection Safeguards Factsheets, there are 2 at present, What are they? and An Overview of the Process.

Liberty Protection Safeguards: what they are

There are 6 key differences between the Liberty Protection Safeguards and the current Deprivation of Liberty scheme.

• Three assessments will form the basis of the LPS, a capacity assessment, a medical assessment (to determine whether the person has a mental disorder) and a ‘necessary and proportionate’ assessment.
• Greater involvement for families.  There will be an explicit duty on those completing the assessments to consult family and friends who have an interest in the person’s welfare.  An appropriate person (who can be a family or friend) will be appointed to support the person through the LPS assessment process and throughout the authorisation period. Family and friends will be able to raise concerns or objections during the assessment process or authorisation period.
• A targeted approach.  If it is reasonable to conclude that the person doesn’t wish to have care or treatment in a particular place, their case can be referred (by the Responsible Body) to an Approved Mental Capacity Professional (AMCP) for an additional layer of scrutiny and protection.  This also applies to care arrangements in independent or private hospitals.  The AMCP will review the information upon which the Responsible Body relies to grant the authorisation, consult others and meet the person if appropriate.
• Extending the scheme to 16 and 17 year olds.  The current Deprivation of Liberty Protection Safeguards scheme only applies to people aged 18 and over.  Any request to deprive a 16 or 17 year old must be made with an application to the Court of Protection.  The new scheme won’t require a court application in every case.
• Extending the scheme to domestic settings including people’s own homes and family home, supported living and shared lives accommodation.  Under the current scheme, any applications to deprive a person of their liberty outside of care homes and hospitals must be made with an application to the Court of Protection.
• CCGs, NHS Trusts and local health boards join local authorities in becoming Responsible Bodies.  Currently only local authorities are Supervisory Bodies.

Liberty Protection Safeguards: an overview of the process

The second, and most recent factsheet takes a closer look and the process and includes; making a referral, representation and support, assessment and authorisation and reviews.

Making a referral – In most cases either the local authority, CCG or NHS trust will be the responsible body and any Liberty Protection Safeguards requests will go to one of them.  The idea is to make the application process as easy as possible and will (although not confirmed) likely be with a standard form.  However, it is important that any requests are acted upon and if an application reached one of the responsible bodies in error, the ‘no wrong door’ principle will apply.  It will be expected that responsible bodies work together in such cases and where it isn’t clear who the responsible body should be.

Representation and support – If a person doesn’t have family or friends to represent them throughout the process, the Responsible Body must take the necessary steps to ensure that an Independent Mental Capacity Advocate (IMCA) is appointed.  Similar to how IMCAs are appointed under S.39a of the Mental Capacity Act for the current Deprivation of Liberty Safeguards scheme.  It will be the responsibility of the Responsible Body to ensure that the person and their representative understand the process.

Assessment and authorisation – If assessments are required, the responsible body will arrange them and ensure that attempts are made to consult family member, friends or anyone with an interest in the person’s care.  Then, the responsible body will ensure that a pre-authorisation review is undertaken.  There are no specific details about who can undertake the review (see below for exceptions) although it can’t be someone involved in the day to day care or treatment of the person and can’t be someone with a connection to the care home.  The aim of the pre-authorisation review is to ensure that the qualifying criteria are met:

• The person lacks the mental capacity to consent to the arrangements
• The person has a mental disorder (defined by the Mental Health Act)
• 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).

There are certain circumstances whereby an Approved Mental Capacity Professional (AMCP) must undertake the pre-authorisation review.  This will be when the care arrangements are being  provided in an independent hospital or when the person is objecting to the care arrangements or proposed care arrangements.  The AMCP is a new role and in many ways, comparable to the current Best Interests Assessor role.  There will be other circumstances where a case can be referred to an AMCP and these will be detailed further in the new Code of Practice which is due to be consulted upon and published in 2021.

One the pre-authorisation review is completed, and the qualifying criteria met, the Responsible Body can authorise the deprivation of liberty.  Similar to the current Deprivation of Liberty Safeguards, this can initially be for up to 12 months followed by a further period of 12 months if required.  However, after this, if appropriate, the authorisation can be renewed for up to 3 years.  Further details about when a 3 year authorisation might be appropriate will be detailed further in the new Code of Practice.

Reviews – It will be the responsibility of the Responsible Body to ensure that a programme of reviews is undertaken to ensure that the authorisation is still required and the qualifying criteria met.  That would generally be when the authorisation is expiring but can also be if the person’s circumstances change significantly or any of the qualifying criteria are no longer met.  The person, their family, IMCA or appropriate person will be able to challenge the authorisation with an application to the Court of Protection.