Resources Blogs Questions, Questions, Questions Welcome to my first ever blog. My name is Rachael and I am a community manager at POhWER. For those of you not familiar with POhWER we are a human rights advocacy charity, delivering advocacy services across the country. I am responsible for a team of advocates in Buckinghamshire, so a special welcome to any of you reading this from our area. You might be thinking oh you’re lawyers – sorry to disappoint. The essence of speaking on another person’s behalf, fighting for their rights, arguing about what is right is the same but we do it in the context of decision making in health and social care. We are not legally trained and we cannot give advice. In a nutshell we help a wide variety of people, usually with some form of disability, impairment, or health condition, physical and mental, to understand information and communicate their wishes and feelings to others, focused particularly on making sure that people’s human rights are upheld. We don’t get to dress up in wigs and gowns which is a shame. One of the services I manage in Buckinghamshire is advocacy under the Mental Capacity Act 2005, where people are deprived of their liberty, commonly known as DoLS. For those of you who haven’t heard of this before don’t worry, I had never heard of it until I joined POhWER either and here I am 6 years later writing a blog about it. Based on Article 5 of the European Convention of Human Rights, people’s right to liberty, this is where someone is living in a care home or hospital and the restrictions on their freedom mean that they are deprived of their liberty, they are not free to leave the place and while they are there they are subject to continuous supervision and control. Last year across my team about 25% of the work they did altogether was in relation to deprivation of liberty. Before I became the team manager I worked as an advocate and about 70% of the work I did was in relation to deprivation of liberty, and I was always flagging issues about people being deprived of their liberty. The eagle eyed readers out there will be thinking, but I thought this blog was about LPS and not DoLS. Don’t worry it is, I’m just setting the scene. LPS is short for liberty protection safeguards and is a new system designed to replace the deprivation of liberty safeguards we have at present. There had been criticism of the DoLS process, in 2014 there was a House of Lords Select Committee which stated it was not fit for purpose and should be replaced. At the same time a case in the Supreme Court held that more people should be coming through the process that had been thought by many. Following this further criticism arose with many if not all Local Authorities being unable to process all of the referrals they received in the timeframes required. It was considered to be a lengthy and complex process, using outdated terminology, lacking oversight, trying a one size fits all approach and in conflict with the Mental Capacity Act at times. I won’t go into detail here, as I won’t have anything to write about next month if I do, but in essence LPS is a new process for considering whether people over 16, are deprived of their liberty in a wide variety of locations. This time it is not just care homes and hospitals but also includes community settings like living in someone’s own home with a package of care. Ultimately if someone is not free to leave where they live and the care they receive amounts to continuous supervision and control, and a number of criteria are satisfied, including whether it is considered to be necessary and proportionate to the harm they would likely suffer if they were not deprived of their liberty, the deprivation will be approved with conditions, scheduled reviews, routes to challenge and someone appointed to support the person throughout all of this. So for me, doing my best to understand the new system will help me to support my advocates and put in processes to make sure we can react effectively and efficiently to referrals. With that support my advocates can do their best to support their clients, to protect and uphold their rights, to help them understand what is happening and to have a say about it. It will affect people who are believed to lack capacity to make their own decisions about care and treatment. It will affect those in our society who are most dependent upon others, maybe our elderly citizens suffering with dementia in a care home, or adults with mental health conditions in long term hospital or people with learning disabilities at home with their parents. These will be people who already have so little control over decisions about their lives, and whose freedom to do what they want, when they want is limited. The process aims to make sure that these sorts of caring arrangements are in their best interests, and that we don’t have Cinderella forced to work in the cellar or Harry Potter sleeping in the cupboard under the stairs. Ultimately my advocates’ role in this is being part of this system where clients’ voices are heard and their lives are empowered. I feel like I have been talking about LPS for a long time already. In 2015 the Law Commission had a consultation about how the DoLS system could be improved and published a report of recommendations in 2017. In 2018 the government published a final response agreeing to the replacement of the DoLS system and a bill started in the House of Lords later that year. The Mental Capacity Amendment Act received royal assent the following year on 16th May 2019. So finding myself writing a blog about it so far down the line in 2020 seems a bit strange. Why now? What’s the point? How can I explain the history of everything that has gone on, where we are now and the seemingly enormous journey still ahead? But maybe that is just a reflection of where a lot of people are at the moment with this topic; so many questions already asked, so many questions still unanswered and so many questions still to come. Every discussion I have had, every meeting I have attended I think I have come away with more questions than answers. I’ll be honest you won’t find answers in this blog but I’m hoping that it will highlight some of the issues, get people thinking about LPS, get people talking about LPS and ultimately help me sleep a bit better with thoughts on paper rather than running through my head at 2am. Because the journey did not stop back in 2019 once it had gone through the parliamentary hurdles. On 16 July 2020 Helen Whatley announced that the LPS system would not come into force in October 2020 as had been anticipated. From an implementation perspective I welcomed this announcement. In light of the pandemic, plans for public consultation, training and implementation it seemed obvious that by that point an October start date was never going to work. There had been an announcement at the National Mental Capacity Forum on 3rd June that the start date would be delayed and back on 28th April it was said not to prioritise LPS preparation. There were promises of national statements being forthcoming as soon as possible and when this finally came it was a relief. A new go live date of 1st April 2022 gave us plenty of time to get to grips with LPS and have the answers to all of my unanswered questions. However I wasn’t expecting such a long delay of 18 months and whilst no doubt affected by the Covid-19 pandemic and the need for the sector to recover before introducing a new system, I was worried that LPS would get lost in people’s priorities. I was worried that the engagement and planning that had started would be interrupted and put to the back of people’s minds. What a shame it would be if we had all this time to really get our heads round everything only to be back in the position of still having a mad rush in the last 6 months. LPS is a significant change to existing systems for authorising the deprivation of liberty of individuals who lack capacity to consent. It changes terminology, process, eligibility and really needs attention and planning in order for its implementation to be successful. How many of us really know the DoLS system inside out after all this time? But how do we do that when there’s still so many questions unanswered? So here’s my plan for you to see unfold through this blog: I’m going to focus on what I know already, consider it, discuss it and get my head round it. Then I’ll identify what I need to know and where I will get those answers; will it be something which comes nationally from the regulations or code of practice or will it be something organised on a local level? Finally I’d like to know what are the questions that my colleagues across the sector have and how do they impact on me? Based on Helen Whatley’s announcement the expectation is a public consultation starting about April 2021. This would allow a 12 week consultation, completion/amendment of the regulations and code of practice which would then be laid before parliament and a 6 month implementation and training process. That means I’ve got about 6 months to get in a good pace to be able to engage in the consultation. So wish me luck and welcome on this journey with me. I hope that my LPS ramblings at least keep the subject alive, even if in 12 months’ time I’m still asking the same questions.