Consultation on Liberty Protection Safeguards
Changes to the Mental Capacity (Amendment) Act 2019 (MCA) Code of Practice and implementation of the Liberty Protection Safeguards (LPS).
On 16 May 2019, the Government passed the Mental Capacity (Amendment) Act 2019. This introduced some significant changes to the lawful process of depriving someone of their liberty.
On 17 March 2022, the Government published a new draft Mental Capacity Act Code of Practice together with several additional documents for which they are now seeking public consultation before these become final.
Your chance to provide feedback
The updated draft Code has two main purposes. Firstly, to update the original Code, which has remained unchanged since 2007. Secondly, this draft Code explains the Liberty Protection Safeguards (LPS), which will replace the Deprivation of Liberty Safeguards (DoLS).
LPS is intended to be a more streamlined, two-tier process that promotes safeguarding all eligible individuals' Article 5 Human Rights and will be accessible to all individuals who meet the qualifying criteria regardless of where they reside.
From now until 7 July 2022 you have the opportunity to respond to the national consultation to help inform and shape how the LPS Service will best serve the people of Derby.
If you would like to take part, please refer to the consultation documents and respond to the national consultation.
Contained within the consultation documents are some easy read documents to both assist in making the material easier to understand and provide an overview of the intended purpose of LPS.
This consultation ends 7 Jul 2022.
The current legislation
Deprivation of Liberty Safeguards (DoLS) applies only to those individuals residing in care homes or hospital settings where it has been assessed that a person lacks the capacity to decide upon those care arrangements and it is identified that the level of care required to safely manage associated risk amounts to a deprivation of the person's liberty. It is currently necessary to make applications to Court for other care settings where a person is identified as being deprived of their liberty.
Estimates indicate that DoLS would cost £2.4 billion per year if all local authorities were to meet their associated legal duties and so changes to the existing legislation were sought.
DoLS was implemented in 2009 to address a legal gap when people are deprived of their liberty within care homes and hospitals. Article 5 of the Human Rights Act requires that lawful processes are followed whenever the State deprives people of their liberty.
DoLS is a complex and expensive process requiring two independent assessors. It was designed for small numbers of people that, in addition to being unable to give valid consent, have strong objections to their care or are subject to high levels of restrictions.
After the Supreme Court’s Cheshire West judgement in 2014, DoLS became unsustainable. The judgement lowered the threshold for ‘deprivation of liberty’ with the number of referrals growing significantly and in turn increasing the pressure upon local authorities to meet the demand.
The amendment to the legislation will bring to an end the existing Deprivation of Liberty Safeguards (DoLS) Service and replace it with a scheme that will be called Liberty Protection Safeguards (LPS), which is intended to widen the scope of people it provides the service to, beyond care homes and hospital settings.
The Mental Capacity (Amendment) Act 2019 together with the recently published draft Code answer some but not all questions about how LPS will work.
The final Code, Impact Assessment and an implementation date are expected in 2023.