Gordons Care Sector Legal Report – April 2022

The LPS Consultation is finally here!

After much anticipation, the Liberty Protection Safeguards (LPS) consultation was finally published on 17 March 2022. It can be found here. The consultation runs until 7 July 2022 and I would strongly encourage providers to give this some consideration and to respond to the consultation accordingly.

Code of Practice

A draft single Code of Practice has been published for the Mental Capacity Act 2005 (MCA), incorporating the LPS updates from the Mental Capacity (Amendment) Act 2019. This updates the existing MCA Code generally, it updates existing chapters in light of the changes brought about by LPS, and there are also new chapters that have been added to incorporate the necessary changes due to the implementation of the LPS.

Deprivation of Liberty

Chapter 12 of the Code sets out the three elements of a deprivation of liberty:

1. Objective element – confinement in a restricted space for a non-negligible period of time.

2. Subjective element – the person has not validly consented to that confinement.

3. And the state must be responsible for the detention.

The Code then covers the “acid test” set down in the Supreme Court case known as “Cheshire West”, which identified the key features of a deprivation of liberty, namely:

The person is (1) under continuous supervision and control and (2) not free to leave.

Both need to be present for the arrangements to constitute a deprivation of liberty.

The Code summarises “continuous supervision and control” as meaning “the person not being left alone for significant periods of the day and not being allowed to make decisions about their own life. For example, about the activities they do during the day, or where they live.”

“Freedom to leave” means “the ability to leave permanently, for example, in order to live where, and with whom, they choose.”

Timescales

Chapter 13 of the Code sets out the process of authorising arrangements. Tight timescales apply. The Responsible Body should inform the referrer that the referral has been accepted within five working days. It also says that the assessment process should not exceed 21 days. All health and social care professionals will have a responsibility to refer.

Portability

It also sets out limited circumstances when a deprivation can be portable. The general rule is that where changes of setting can be reasonably foreseen, they can be included in an authorisation record. However, if the change of setting is unexpected, a new authorisation would be required.

Wider Consultation

In addition to this Code, there is an online survey, a consultation document, six draft regulations, a draft impact assessment, a draft training framework and strategy as well as a draft LPS National Minimum Data Set. With the Code of Practice itself running to over 500 pages, it would be easy to get overwhelmed by the sheer volume of documentation. I would recommend starting with the ‘Changes to the MCA Code of Practice and implementation of the LPS: consultation document’ with the Code open alongside it to refer to the specific sections relevant to you.

No target date for implementation has been set yet. The consultation document says, “We intend to set a new date for LPS implementation when we publish the consultation response”. Therefore realistically, it is unlikely that the new regime will come into force before 2023.

Despite this, it is important to be aware of the proposed changes and make sure you voice your opinions now. Prepare your teams for the transition by keeping an eye out for suitable training materials. Managers should ensure that any current assessments on mental capacity and mental disorder are kept on file. It may be possible to use these in the future. Additionally, teams should ensure that all Deprivation of Liberty Safeguard (DoLS) applications are up to date and that staff knowledge of the MCA is good. This will not only assist the transition, but it is something that CQC Inspectors will be specifically looking for in the near future.

 

About the Author

Lucy Bowker
Health and Social Care Lawyer

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