Welcome to the second instalment of my blog on Liberty Protection Safeguards (LPS), from an advocacy service managers perspective. If you haven’t read my first piece, please take a look; it gives an introduction to me, my connection with deprivation of liberty issues and why they are important. It also basically highlights that I’m keen to keep the conversation about Liberty Protection Safeguards alive in the run up to its implementation in April 2022 and that I have lots of questions about how it will work.

In preparation for this piece I started to think about what we do know about LPS and helpfully a LPS newsletter popped into my diary from the Department of Health and Social Care. And then another ... and another. So the conversation is well and truly alive now the questions is whether I can keep up with it. Lesson learned; be careful what you wish for.

I receive updates from the Department of Health and Social care as an LPS stakeholder, someone who has been working with the Department as part of their LPS Code of Practice Working Group. This was a group of representatives from a large number of organisations and charities who work with the current Deprivation of Liberty Safeguards (DoLS) and would be affected by the new LPS system. This included me representing POhWER as an advocacy charity but also representatives from other advocacy charities, and representatives from health professionals, social workers, care home managers, Local Authorities, the Department of Health, and other representatives from the charity sector. Collaboratively we fed into the first draft of the Code of Practice which is due to have a 12 week consultation starting in Spring 2021. This work has now come to an end and only sight of the draft as part of the consultation will show whether or not we were listened to. Historically there has been a lot of comments that the report written by the Law Commission recommending changes to the DoLS system was largely ignored so only time will tell. And of course the world looks very different now post Covid19.

What was pleasing to see about this newsletter was the initial commitment to update stakeholders on progress about once every two months. As I mentioned last month, communication around what was happening with the implementation date wasn’t ideal so this is a great step forward. And they have in fact surpassed this – I have now received updates in September, November and December.  Thanks for the content DHSC! The update is accessible in so much as there are clear headings and a visual timeline. The language is relatively clear but is obviously aimed at people who already know a bit about what is going on and but there is a promise that they are exploring alternative formats and web links. Stakeholder are encouraged to share with our colleagues – I don’t know if it is published anywhere or if you can only currently access it through the email. I did a quick search on the government website and couldn’t see anything so for now the wider public are reliant on those stakeholders who do received the newsletter sharing it. You can get in touch with any queries or suggestions regarding the newsletter by emailing [email protected].

There is an introduction to some new team members who will be working on the regulations, the code of practice and policy issues. Nice to be able to recognise some names – but perhaps more importantly it makes it a bit easier if you have some specific questions. The timeline confirms what I had mentioned in my last blog – consultation on code of practice and regulations Spring 2021, these being laid before parliament in Autumn 2021, published in Winter 2021, some regulations coming into Force in January 2022 and then full implementation in April 2022.

What is really interesting to me is the addition on the timeline of the publication of a revised impact statement in Autumn 2020!!! POhWER had written to the Department for Health and Social Care with concerns and statistics on some of the assumptions made in the previous impact statements. We were particularly concerned about the amount of hours they thought each IMCA would spend on a case and therefore how many IMCA’s would be needed. This is a discussions for another day – I won’t spoil it for you but look out for my blog following the impact assessment being published to see my thoughts. Obviously there is the usual caveat that this could all be subject to change and the use of timeframes like spring, autumn and winter means there is wide scope for when we might actually see some of these things. I mean we now regularly get snow in February and March – sometimes even April, is that winter? We also have the uncertainty created by the continuation of the Covid-19 pandemic as case numbers increase, lockdowns return, new tiers systems implemented but also a vaccine being delivered. Who knows what life will look like next year. But now we are in December I’m saying autumn has passed.

There’s confirmation that instead of having to separate codes of practice for the Mental Capacity Act and DoLS like we do now there will be one revised Mental Capacity Act Code of Practice which includes LPS. In my mind there are pros and cons of this. The positives are that by having it all in one document it is clear that LPS is not something in addition to the general rules and principles on capacity but that it sits squarely within those principles. It is still alarming to me that 15 years on from the Mental Capacity Act people still just don’t seem to get the Mental Capacity Act and our beneficiaries suffer as a result.  Maybe this will help. It will also mean consistency and a lack of duplication. However I’m worried that people will be put off using it. I love the codes of practice and I refer people to them and quote them all the time. But I’m someone who has a postgraduate diploma and spends my working day trawling through paperwork. I’m so used to using the code of practice that I know that paragraph 10.79 is the one that details information about what it means to be appropriate to consult. But for busy people who are providing care, or the family member who is caring for a loved one in their own home – will this be accessible to them? Will they be put off having to trawl through it to find the bit of information that they need? I’m hoping that instead of just being published in hard format that, like the Care Act Statutory Guidance, the new Mental Capacity Act Code of practice will be available online, with chapters easy to navigate and other additional resources to help us make sense of it all.

There is also confirmation that they are restarting the LPS Steering group that they had set up previously, again formed of stakeholders but in smaller numbers than those working on the code of practice. The aim of this is to focus on resolving outstanding policy and implementation issues. I’m not a member so what goes on is a mystery to me as much as anyone else. I wonder if there is any advocacy representation on the steering group. If not there should be. IMCA’s play really quite a unique role in the DoLS and LPS systems. We are really the independent lynchpin that connects everyone together, we have contact with the client, the staff who are caring for them, the social workers, the doctors and assessors and those responsible for authorising the deprivations and are one of the only people that will be involved with the client from the beginning of the assessment process to the end of the authorisation and any challenges to the Court of Protection in between. The changes to the IMCA role, namely the removal of the Relevant Persons Representative (more on this in future blogs) does actually have significant implementation considerations. I hope they are not being missed.

Finally there is the first published factsheet with the promise of more to follow. This one summarises the main changes. There are 6 main changes from DoLS that the fact sheet highlights.

1. Three Assessments - So instead of the 6 assessments that we are used to at present with DoLS there will be just 3. A capacity assessment, a medical assessment and a necessary and proportionate assessment. So the capacity assessment is identical to the capacity assessment we undertake in DoLS and the medical assessment is the equivalent of the confirmation of a mental disorder that we also currently see. The necessary and proportionate assessment is similar to the best interests’ assessment that we see currently but with a slightly different focus. Best interests remains a key principle of the Mental Capacity Act and will not be affected so any decisions made on behalf of someone who lacks capacity will need to be made in their best interests. I’m expecting there to be something in the Code of Practice on this because I’m sure that this will cause a lot of confusion. Of course in order for something to be in someone’s best interests it must be both necessary and proportionate so there isn’t much change here really. If we separate out eligibility criteria instead of assessments we see that mental health condition, capacity and best interests are fully covered in these 3 assessments. To be eligible for DoLS there is still a requirement around age (over 16 now instead of 18). Advanced decisions and powers of attorneys or deputies would still affect decisions making under the Mental Capacity Act. Finally the Mental Health Act has not been changed so eligibility considerations remain. These criteria are still part of the process they just don’t require a specific assessment. How and where these considerations will be evidenced however is not yet clear to me. It is expected that existing care planning processes will consider, assess and evidence issues around deprivation of liberty to help provide the necessary evidence for this process. You’ll have to wait for a separate blog on this – my experience of managing a care act advocacy service is not confident this will work. Finally this part of the factsheet identifies that the term Supervisory Body will be replace with Responsibly Bodies. At present DoLS teams in the Local Authority where the client is ordinarily resident act as the Supervisory Body assessing, authorising and monitoring deprivations of liberty. This will be expanded to include NHS bodies and there are specific rules about who the Responsible Body is depending on where the client is being deprived and funded. This will no doubt take some adapting to for those people that are used to the DoLS system but it is intended that there will be no wrong door – meaning if an application or alert is made to the wrong Responsible Body they will have a responsibility to make sure it goes to the right one.
2. Greater involvement for families – the factsheet highlights this as an explicit duty to consult others and explains the role of the “Appropriate Person”. In all honesty I don’t think this is much different to the current position where those people who are caring for a person or interested in their welfare must be consulted by the Best Interests Assessor by virtue of section 4(7) of the Mental Capacity Act 2005. A family member can then be appointed as the Relevant Persons Representative (RPR) who will support the person once the authorisation is granted. This is of course subject to those people being available and appropriate. Under the new system this involvement will be slightly expanded and more formalised. So similar to how the Care Act 2014 operates, everyone will be entitled to an Appropriate Person to support them through this process and their role will be to help them understand what is happening and why and to help them be involved as much as possible. This will start from the beginning of the process where it is first identified that someone might be deprived of their liberty and will continue until the authorisation comes to an end. There are rules about who can be an Appropriate Person - largely these focus on whether or not the person is providing care or treatment in a paid capacity, whether they are willing and able to support the person and the person is happy to be supported by them. Really in my opinion this is a strengthening of the current involvement of family members so that more is expected for longer. From an advocacy perspective we then come in when there are no family members or friends appropriate and able to take on this role. However it is a right of the person deprived to have their loved ones involved in decision making about their care so we make sure that there really is no-one available and appropriate before we take the case on.
3. Targeted approach – the factsheet explains that there will be an Approved Mental Capacity Professional (AMCP) role. This replaces the current Best Interests Assessor. Instead of these professionals being available for every person coming through the system and co-ordinating the assessments these will only be used in particularly complex cases, or where the deprivation is occurring in an independent hospital or where it is reasonable to believe that the person would not want to reside or receive care and treatment in the place specified. This is quite a substantial shift and some will see this as removing a large safeguard currently provided. In particular there are questions about how the threshold would be met to identify reasonable belief that the person would not want to reside in the place specified etc. Too much to do in this one segment – you will have to wait for a separate blog on the detail around this. The role of the AMCP however would provide a safeguard to review the information, consult with the person and others involved and could challenge suggested deprivations.
4. Extending to cover 16 and 17 year olds – a massive shift for those working with young people is the change to the age criteria. Currently 16 or 17 year olds who are deprived of their liberty would need the Court of Protection to approve this and parents cannot consent to this on their behalf. However they will be involved in the LPS system which means this administrative process will be followed without Court involvement, save for those exceptional cases. There was always a bit of a conflict because the Mental Capacity Act 2005 applies to those 16 and over so this is helpful to bring these in line with each other and further embed the consideration of deprivation of liberty into the Mental Capacity Act. Will it free up the courts? I’ll be honest I don’t know the statistics of how many applications should be made to the Court of Protection and those that are made to the Court of Protection. It will either free up the Court of Protection or it will ensure that more young people have their deprivation considered and assessed and are afforded the protection and safeguards that they deserve.
5. Extending to cover domestic settings – similar to expanding the age – the locations are also expanded. DoLS currently applies to care homes and hospitals only and all those people deprived of their liberty in places such as supported living or in the community would have to go through the court of Protection. Now they will be part of the administrative process. My experience of this is that not all of the cases that should go to the Court of Protection do (though I don’t know proportions) so I’m leaning more towards the fact that this will ensure more protection for people who deserve it rather than suddenly free up the Court of Protection.
6. Expanding Responsible Bodies – finally it explains the role of health as Responsible Bodies. So a deprivation of liberty at a hospital will have the relevant Hospital Manager (normally NHS trust) as the Responsible Body, or the Local Health Board in Wales. Any deprivations of liberty funded by continuing health care will have the relevant CCG or Local Health Board as the Responsible Body. Currently all of these are co-ordinated by the Local Authority DoLS teams so this will spread the responsibility across health as well as social care. Hopefully this will help embed the Mental Capacity Act with our health colleagues because in my current experience this is not great. That being said from our perspective the number of referrals coming into us which require advocacy are likely to increase as the workload is shared across these bodies and not dependent upon Local Authority resources. Add the wider location remit and the wider age remit and I expect things to be busy in 2022!

This is quickly turning into war and peace so the November and December updates will feature in my next blog.