LPS stands for Liberty Protection Safeguards.

Everyone has human rights and freedoms – in this country these are protected by law through the Human Rights Act.  One of those rights is the right to liberty – or freedom.

A person’s liberty or freedom is only allowed to be taken away in certain ways under the law. At the moment this is done;

• when someone is ‘sectioned’ and detained under the mental health act
• when it is necessary to deliver care and treatment to someone and they are ‘deprived of their liberty’ (for example in a care home) and this is in their best interests
• by a criminal court when someone is sent to prison for breaking the law.

You are ‘deprived of your liberty’ if you are not allowed to leave the place you are living at independently, and are always under the supervision and control of other people.

At the moment there is also special protection under the Mental Capacity Act and Deprivation of Liberty Safeguards (DoLS) for people who ‘lack capacity’ to consent to being deprived of their liberty. This means that because an illness, injury or a disability has affected the way a person’s mind works, they are not able to agree that they will not be allowed to do certain things, or agree to where they must live, and a decision about them being deprived of their liberty has to be made in their best interests.

If someone is deprived of their liberty for care and treatment in any other setting then this has to be approved by the Court of Protection.

What is changing?

In 2019 the government passed a law to introduce LPS (Liberty Protection Safeguards) to replace the old Deprivation of Liberty Safeguards (DoLS). Covid-19 delayed the changes and the date when they will come into effect has not been published.

We are waiting for the government to publish a ‘Code of Practice’ to guide how LPS will work for people, and things will be clearer once this happens.

We do know that the new LPS laws will apply to more people, including 16 and 17 year olds and to people in more settings (including hospitals, supported living and their own home).

Each place will be a ‘Responsible Body’ and will be responsible for organising tests and assessments depending on where the person is. The Responsible Body might be a hospital trust or a council’s Adult Social Care Services.

The tests will be:

• whether the person has a mental disorder
• whether that disorder is severe enough to mean that they lack capacity to agree to their care and treatment, and the way in which they will be cared for, and to have their freedom taken away
• whether the need for the care and treatment proposed is both “necessary and proportionate” to the risk of harm they would likely suffer without this care.

The Responsible Body will have appointed people to carry out the tests and assessments, and they must speak to the person who is being deprived of their liberty, and their loved ones. Friends and family can act as an Appropriate Person to support their loved ones through this process. Anyone who doesn’t have family members or friends who can support them will be able to have an Independent Mental Capacity Advocate (IMCA) to help them understand what is going on.

If the person who lacks capacity and is deprived of their liberty is unhappy about being cared for in this way, or their ‘Appropriate Person’ disagrees that the decision is in their best interests, then the Responsible Body will need to appoint a specially trained ‘Approved Mental Capacity Professional’ or AMCP to look into what’s happening to the person.

If it is decided that the person meets all the tests then the LPS can be approved. LPS can be renewed after one year and after that for periods of up to three years at a time. The person will continue to be supported by their loved ones or an Independent Mental Capacity Advocate whilst they are deprived of their liberty.

A person who is unhappy with or objects to the LPS can challenge it, (supported by their family or friends or an Independent Mental Capacity Advocate) and ask the Court of Protection to make sure that their care and treatment, and deprivation of liberty is within the law.

POhWER have been working with a group of other professionals and the Department of Health and Social Care in writing the Code of Practice to make sure that it truly safeguards people’s rights.

The Government is expected to carry out a consultation with the public on what the Code of Practice will say later in the year. We will let you know when this is live.