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Prepare yourself for the new Liberty Protection Safeguards

By CHM freelance writer Eleanore Robinson
The new Liberty Protection Safeguards (LPS) are due to come into force next April, replacing existing Deprivation of Liberty Safeguards (DoLS), to protect people receiving care’s human rights.

However, following a change in ministerial personnel and with a new COVID variant to contend with, many in the sector now believe the implementation of LPS will be put back until at least the autumn.

With no sign of a public consultation or a code of practice outlining the details of the changes, it is difficult for care home providers to know what the changes could mean for them.

However, there are still a number of measures that care home providers can put in place now to prepare for the new regulations. 

The biggest change is that LPS will apply to people who lack capacity aged 16 and above in all settings. The outgoing DoLS only apply to registered care homes and hospitals and people aged 18 and over.

Care England consultant Rachel Griffiths, who is a member of one of the working groups focusing on LPS, said: “Hospitals and care homes will not find it too difficult at the moment to make the changes that will come in with LPS.”

Griffiths said that “detailed training” as well as a new code of practice will be coming out when LPS is implemented so providers are ready for the change.

Care home manager duties
Care home managers were initially earmarked to take the brunt of administration work under the new regime but, following feedback from the sector, those plans have been dropped for now.

However, the legislation remains in place to implement this further down the line to switch some of the workload from local authorities.

Griffiths said: “I think it might be left to wither on the vine, but it is there if the Government decide to bring it in later.”

There are, however, changes that will affect care homes.

Under LPS, assessments will still be carried out by doctors and social workers but instead of there being nominally six assessments there are three.

Whether the person lacks mental capacity to consent to the care plan will remain the same.

Furthermore, a doctor probably still has to confirm that the person has a mental disorder as defined in the Mental Health Act.

Under DoLS the best interest assessor does three assessments which LPS will see bunched into one and renamed the “Necessary and Proportionate Assessment”.

The LPS process should also be frontloaded so that statements are already in place before new residents enter a care setting, further reducing bureaucracy.

Practical questions
Questions remain around how this will work in practice. In some situations, authorisation could be portable between settings or when someone is admitted from the hospital. However, the necessary and proportionate assessment would need specify in advance what restrictions there would be on the person’s freedoms in the new setting.

Lucy Bowker, solicitor at Gordon’s Partnership, said: “It will be important for providers to stay up to date with the implementation of the LPS and make sure their voice is heard during the public consultation when it does take place. We certainly would be very interested to see the draft regulations and code of practice to understand how the LPS will work in practice.”

While waiting for more details on LPS, providers can ensure that their current paperwork is up to date and any DoLS applications awaited are followed up. Bowker added: “This will not only aid the transition to the new system once it is implemented but assist with regulatory compliance.”

Under the new system, assessments can be reused if there have been no major changes, including the capacity assessment if the care provided, and the person’s capacity as described in the assessment is staying the same.

Professional assessments can also be reused, as well as a DoLS one.

Griffiths said: “The mental health assessment is the one that is going to ease the process hugely if you can hang on to it and make sure it’s at the forefront of the file.”

She explained: “The timescales for DoLS are loosened: since the Cheshire West case in 2014 nobody has been able to meet the timescales.

“It is going to be less bureaucratic. It is going to feel more intuitive. Somebody who is never going to regain capacity can be deprived of their liberty under an authorisation for much longer instead of always having to re-do it every year for DoLS.

“There are still timescales, but they are more in tune with the individual, so the bureaucratic burden is lessened.”

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