New mental capacity legislation sees Deprivation of Liberty Safeguards being replaced with Liberty Protection Safeguards
The Mental Capacity (Amendment Bill) was approved by Parliament on 24 April 2019, meaning it will soon become Law once it has gained Peer’s agreement. The legislation sees the Deprivation of Liberty Safeguards (DoLS) contained in the Mental Capacity Act 2005 (MCA), being replaced with the Liberty Protection Safeguards (LPS).
Essentially, the aim for the LPS is the same as that of DoLS, a process for authorising care or treatment arrangements which result in deprivation of liberty (within the meaning of article 5 (1) of the ECHR) of a person who lacks capacity to consent to those arrangements, and also to safeguard those who are subject to the scheme. So why the change?
We can only assume it is primarily for much needed clarity, but we also know it is to cover a wider range of people.
The government is currently working on a code of practice, which will be published later this year, although sadly we don’t know exactly when the new legislation will come into force. We do however know that the new LPS’s will run alongside the previous DoLS for 12 months to help with the transition from one to the other.
Unhelpfully, the legislation will not define “deprivation of liberty”, but it will make changes to section 42 of the MCA to require that the code of practice under LPS MUST include guidance of what kind of arrangements would give rise to a deprivation of liberty.
There are a number of differences of LPS compared to DoLS which will have a direct impact on the care sector specifically. LPS will now apply to a larger range of care sectors, including supported living and private and domestic settings. They are also not limited to place of residence/accommodation. This means they could also cover additional arrangements such a transportation or activities away from the home.
LPS will also become more inline with the MCA in that it will apply to under 18’s who lack capacity, meaning no more court applications. The changes do however hint that more work will be placed on care home managers. The responsible body (local authority) is likely to hand over the arrangements of the necessary assessments and evidence to them, and they will need to provide the responsible body with a statement confirming that:
- the arrangements give rise to a deprivation of the person’s liberty (with reasons),
- the arrangements are not mental health arrangements or requirements,
- the “authorisation conditions” are met,
- they have carried out the required consultation, and
- they are satisfied (with reasons) that if it is reasonable to believe that person does not wish to reside in, or receive care or treatment at, a particular place, that neither applies, or that a decision cannot be made as to whether either applies.
The statement must be accompanied by:
- a record of the assessments confirming that the authorisation conditions are met,
- evidence of the consultation carried out, and
- a draft authorisation record.
The responsible body will then decide whether or not to authorise the arrangements based on this.
Is there good news here? YES! Whereas DoLS were non renewable, the LPS can be renewed after 12 months, for a second period of 12 months, and thereafter for periods of up to 3 years.
Article by Sally White
Ablyss Co Founder