Care home providers should spend the next year and a half preparing and training senior staff and managers for the Liberty Protection Safeguards (LPS).
Delayed by coronavirus, the replacement for the Deprivation of Liberty Safeguards (DoLS) will now come into effect in April 2022, says Anna-Maria Lemmer, associate solicitor at Ridouts.
The LPS will authorise deprivation of liberty in order to provide care or treatment to an individual who lacks capacity to consent to their arrangements, in England and Wales.
The Government is yet to draft regulations and the code of practice for the new LPS, as well as guidance for providers. In the meantime, providers should continue to use the existing DoLS framework to ensure that appropriate authorisations are in place. It is expected that LPS and DoLS will run concurrently for the first year of implementation.
In October, the Government announced that LPS provisions regarding care home managers would not come into force with the rest of the legislation in April 2022. Under initial provisions, care home managers would be responsible for arranging assessments and gathering information as part of the LPS determination.
Concerns relating to the care home managers’ role include the potential conflict of interest and workload implications.
However, the Government has said that it will continue to review the care home manager role as it prepares for the implementation of the LPS and will take into account responses to the public consultation on LPS, which is planned to take place in Spring 2021. Key documentation will also include the revised Impact Assessment of the Mental Capacity (Amendment) Act 2019, which is expected shortly.
In the meantime, providers are reminded of their responsibilities under DoLS, which include reporting DoLS application outcomes to the regulator. In July, the CQC stated that it had seen a 31 per cent drop in DoLS applications notifications from social care.
DHSC guidance, ‘The Mental Capacity Act (2005) (MCA) and deprivation of liberty safeguards (DoLS) during the coronavirus (COVID-19) pandemic’ was updated on 11 November 2020.
