Overview of the LPS Process
The Liberty Protection Safeguards (LPS) are designed to support people of 16 years of age and above who are or may be deprived of their liberty and lack the capacity to agree to any care and treatment arrangements, as described in the Mental Capacity (Amendment) Act 2019. This may affect those with dementia, Learning Disability or Autism, but is not exclusive.
How will Referrals be made?
Referrals can be made by anyone, as there is a ‘no wrong door’ principle within the legislation. However, they will usually be made by the ‘Responsible Body’ which could be a Local Authority or an NHS body (e.g. Trust or CCG). If an authorisation for a deprivation of liberty may be needed, the Local Authority will need to be notified, so the Liberty Protection Safeguards process can be triggered. Official forms are not needed; an email would suffice, as the process can be very informal. All Responsible Bodies will be expected to work together in cases where there is no clear idea who is the correct body to proceed with the process.
Who can Represent and Support a person?
If there are family and/or others close to the person, then they can support and represent the person if they wish. They would become the ‘Appropriate Person’. If not, the Responsible Body must take reasonable steps to appoint a trained 3rd Sector Volunteer, or an Independent Mental Capacity Advocate (IMCA), if required, as soon as a referral is made. The role of the Appropriate Person, trained Volunteer or IMCA is to support and represent the person through the assessment process. Once a proposal is ready, the Responsible Body must take all practicable steps to provide information to the person and their Appropriate Person, trained Volunteer or IMCA to ensure they fully understand the process.
What do Assessments and Authorisation mean?
When an authorisation is required, the Responsible Body will undertake the assessments to determine if the person should be deprived of their personal liberty to protect themselves and potentially others from potential harm. They will consult the person and anyone else involved in that person’s life and care; this could be family members or friends or anyone else that is close to the person. Once this has been completed, a pre-authorisation review will be undertaken by someone who is not involved in the day-to-day care of the person, and who does not have a prescribed connection (e.g. owner, staff member, Board member) to their care home. The pre-authorisation review is most likely to be undertaken by an AMCP (Approved Mental Capacity Professional). The review must conclude that the conditions of the authorisation are met and that the Responsible Body has made reasonable proposals.
What are the Authorisation Conditions?
The three conditions which must be met during the assessment process are:
The person lacks capacity to consent to any 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.
If the person does not agree to residing or receiving care and treatment at a place proposed, or does not agree to the arrangements provided for care where these are mainly in an independent hospital, then the pre-authorisation review must be undertaken by an Approved Mental Capacity Professional (AMCP).
How long will an authorisation last?
Once the pre-authorisation has been completed and agreed, the Responsible Body can authorise the Deprivation of Liberty. The authorisation can come into effect immediately or within 28 days. The arrangements can be made for one year initially, with a renewal for a further year. After this, if appropriate, a renewal can last up to 3 years.
Can an authorisation be challenged?
The Responsible Body will need to plan and conduct regular reviews of the authorisation to assess if the authorisation is still needed. Unscheduled reviews can take place if there is a change in circumstances for the person. An Appropriate Person, trained Volunteer or IMCA can challenge an authorisation through the Court of Protection.