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Key in door | Guidance on Care Homes

LPS consultation: What to do now

The public consultation for the Liberty Protection Safeguards (LPS) will run until Tuesday 7 July 2022.

Access to the open consultation, as well as the draft new Code of Practice and draft regulations is online.

To be contained in the Mental Capacity (Amendment) Act 2019 (yet to come into force), the LPS are due to replace the current Deprivation of Liberty Safeguards (DoLS).

Hempsons says that is essential that care homes prepare now for the transition to LPS, by reviewing resources required, continuing to make applications under the current regime and focusing on good Mental Capacity Act practice.  Everyone affected by the new LPS regime should read the draft Code of Practice and engage with public engagement events, to have your say, assess resources and prepare.  

LPS will provide a new framework for the protection of those aged 16 and over, in any setting who need to be deprived of their liberty, to ensure they receive required treatment or care.

The LPS reform will impact:

  • Independent sector providers – health and social care
  • Local authorities  
  • CCG’s (ICS’s)
  • Mental and Acute NHS Trusts

Guidance in August 2021 set out intentions for a three assessment approach, greater input from family members and additional scrutiny by Approved Mental Capacity Professionals where there are objections to proposals.  

The proposed Code of Practice will be a single code, covering both updates to the Mental Capacity Act 2005 (“MCA”) and the new LPS.

DHSC has said that an implementation date will be set at the end of the consultation period. The Government’s response to the consultation is not anticipated until the winter. Therefore, it will be at least another six months after the consultation closes before the new regime comes into effect.

Once implemented, CQC and Ofsted will monitor and report upon LPS (England only) and there will be parallel running of LPS and the current Deprivation of Liberty Safeguards for one year. Existing authorisations will continue until they expire.

By Rachael Hawkin, solicitor, Hempsons



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