What are Liberty Protection Safeguards (LPS)?

The Mental Capacity Act 2005 is being updated. The relevant legislation will now be The Mental Capacity (Amendment) Act 2019. Liberty Protection Safeguards (LPS) are designed to replace the Deprivation of Liberty Safeguards (DoLS) that were within the Mental Capacity Act 2005. The new safeguards will provide a legal framework of protections for those who are or may be deprived of their liberty within the meaning of Article 5 of the European Convention of Human Rights (ECHR).

LPS will provide protection for people aged 16 and above who are, or who need to be, deprived of their liberty in order to enable their care or treatment and lack the mental capacity to consent to their arrangements.

The Safeguards are expanding the current DoLS legislation and will apply in hospitals, care homes, people’s own home, supported living and community settings. It will also apply to 16 and 17 year olds, enabling Responsible Bodies to authorise arrangements without a Court Order.

Currently, assessments are completed by a dedicated team within the DoLS office but in future this work will be completed by Social Workers, Case Co-ordinators, Nurses, CPNs etc.

The newly created role of Approved Mental Capacity Professional (AMCP) will be responsible for the review of authorisations for those who are objecting to their placement or care provision. These will most likely be current Best Interest Assessors who have completed LPS training.

There will be three (3) assessments under LPS now rather than the current six (6) under the present DoLS system, which will be:

· A capacity assessment.

· A medical assessment – to determine whether a person has a ‘mental disorder’.

· A necessary and proportionate assessment – to determine if potential arrangements are necessary to prevent harm and proportionate to the likelihood and seriousness of that harm.

The Local Authority is currently the Responsible Body under DoLS, but the Mental Capacity (Amendment) Act 2019 will be expanded to include NHS Trusts and Clinical Commissioning Groups. (See latest information here)

Local Authorities, NHS Trusts and CCGs will be known as Responsible Bodies. They will be responsible for the assessment of the person who may be deprived of their liberty ensuring there is sufficient evidence to justify a deprivation of liberty.

Embedding the assessment process into existing care planning, e.g. under The Care Act 2014, will ensure it will be easier to use existing valid assessments ‘where reasonable and appropriate’.

Families will have greater involvement under the Act with an explicit duty by the Responsible Body to consult those who are caring for the person. A family member will be involved and able to represent the person in the assessment process if they are willing and able to act as an ‘Appropriate Person’. Others close to the person can also raise concerns during the process and in response to the authorisation.