By way of reminder, the LPS will be used to authorise the care arrangements of people aged 16 and over, where those arrangements amount to a deprivation liberty and the care arrangements are deemed to be necessary, proportionate and in the person’s best interests basis and where they lack the mental capacity to consent to those care arrangements. The LPS will replace the Deprivation of Liberty Safeguards (“DoLS”) currently in place.
Whereas the DoLS scheme only apply to hospitals and care homes, it is proposed that LPS can be used in other settings, such as supported living, shared lives and private and domestic settings. The LPS will also not be tied to accommodation or residence; they could be used, for example, to authorise day centre and transport arrangements. Authorisations can also be given for arrangements being carried out in more than one setting
The aim of the new scheme is to spread authorisation responsibility across NHS hospitals, CCGs and local authorities, whilst also building the LPS process into the care planning procedure itself. It will bring significant change and new responsibilities across health and social care providers and commissioners in both public and private sectors.
The public consultation regarding the draft Mental Capacity Act (MCA) Code of Practice and related material launched earlier this week and will run until 7 July 2022. The Code of Practice needs to be updated in light of new legislation and case law as well as the new LPS system requiring additional guidance to be added to the Code. Six sets of regulations will also be published alongside the consultation (though formally no consultation is required).
What will change?
- The LPS will apply to all individuals over the age of 16 (currently the DoLS regime applies to 18+ in a care home or hospital)
- The LPS extends to community settings rather than just care homes, including private homes and supported living accommodation. (currently the DoLS only applies to hospitals and care homes)
- Best interest assessors, after training will become Approved Mental Capacity Practitioners (AMCP’s)
- Responsible bodies will now include NHS Trusts (for hospital inpatients), CCGs (for NHS continuing healthcare funded care). In all other cases the local authority are the responsible body.
- There will be three independent assessments required to authorise an arrangement:
- The “capacity assessment” – that P lacks the capacity to consent
- The “medical assessment” – that P has a mental disorder
- The “necessary and proportionate assessment” – that the arrangements are necessary to prevent harm to P and proportionate in relation to the likelihood and seriousness of that harm.
- The LPS will involve an explicit duty to consult those involved or interested in P’s care and an opportunity for a family member or someone else close to the person to represent them as an ‘appropriate person’
- Under the LPS, the responsible body needs to take ‘all reasonable steps’ to secure IMCA representation whereas under DoLS, this was mandatory. At this stage, it is not clear what (if any) difference this will make in real terms. More information will be available when the Code of Practice and IMCA regulations are published.
- There will be more portability of authorisations: The focus will be on P, not the place in which those care arrangements are authorised; e.g. there could be one authorisation for two different settings.
- The right to regular reviews, consultation and representation by an “appropriate person” (AP), which replaces the role RPR, or an IMCA as well as unscheduled reviews in changes of circumstance. The authorisation can initially be renewed for 1 year and thereafter for up to 3 years.
What stays the same?
- There continues to be no statutory definition of a “deprivation of liberty” in the MCA(A)A although there have been suggestions one may be included in the Code of Practice. Currently, the definition of deprivation of liberty as per ‘acid test’ in Cheshire West remains in place.
- P will retain the right to challenge the authorisation under s.21ZA and which will continue to attract non-means tested legal aid.
There is provision within the MCA(A)A for care home managers taking responsibility for a lot of the evidence gathering under the new regime. There was significant criticism of this concept from the outset. Currently it is understood this will not be implemented.
The Government is expected to respond to the consultation in Winter 2022-23. An implementation date for the LPS is not expected to be set until then.
Click here for a link to the consultation.
Sonal Lala | Solicitor