Liberty Protection Safeguards update – consultation on the draft Code ‘very soon’

I reproduce the material text below of the most recent LPS update circulated on 10 March 2022.

Dear LPS Stakeholders,

It’s been a few months since we last issued our LPS newsletter and in that time, Government has confirmed that we are no longer aiming to implement LPS by April 2022 and that we will be confirming a new implementation date after the consultation has concluded.

It is paramount that the design and implementation of LPS is successful, so we have also been considering when to launch the consultation to ensure that all concerned are able to properly respond. We understand that Omicron and winter pressures have continued to put pressure on the health and social care system and we have been speaking to some of our key stakeholders to inform when to launch.

Please read on for the latest updates on the LPS consultation.

LPS public consultation

We are pleased to announce that we expect to launch the public consultation on LPS very soon, which will run for 16 weeks. We have decided to extend the consultation from 12 weeks to take account of local government elections taking place in May.

What to expect

The consultation will be a joint consultation published by DHSC and MoJ on the draft Mental Capacity Act (MCA) Code of Practice. This needs updating for two key reasons.  First, the existing Code guidance needs updating in light of new legislation and case law, organisational and terminological changes, and developments in ways of working and good practice. Second, the new LPS system means that additional guidance needs to be added to the Code. The consultation document and the Code of Practice will also be published in Welsh.

In order to ensure the consultation is accessible and informed by a variety of expertise and views, we have also produced two easy read summary booklets of the Code. One booklet is an easy read summary of the wider MCA guidance in the Code which is not directly relevant to the LPS. The other booklet is an easy read summary of the guidance in the Code which is specifically relevant to the LPS. These easy read summary booklets are based on the chapter summaries in the full Code.

Alongside the public consultation, we are also publishing six sets of draft regulations which will underpin LPS. When enacted, four of these sets of regulations would apply in England only. The remaining two sets of regulations would apply to both England and Wales. We are not required to consult on the regulations. However, we have decided to publish these with the consultation to seek views on the policy detail of each set of regulations. The draft regulations are indicative of the policy intention only and do not represent final drafting.

The Welsh Government is holding a separate consultation on certain aspects of the LPS design in Wales. This includes secondary legislation specific to Wales. If you work in or engage with the Welsh health social care system, please respond to the Welsh Government consultation which will be going live at the same time.

LPS implementation products 

Alongside the launch of the joint public consultation, we will be publishing a number of documents to support the sector in implementing LPS. You can find these documents on the consultation page once the consultation goes live. These draft documents are:

  • Impact assessment – this constitutes the Government’s assessment of the financial impact of LPS, including the Code and regulations, as proposed for consultation.
  • LPS workforce and training strategy – this covers workforce planning; the learning, development and training on offer; and what different organisations and sectors can do now, to begin preparing for LPS
  • LPS training framework – this makes recommendations about subject areas that LPS training should cover.
  • LPS national minimum data set – this will be used to standardise the collection and submission of the proposed statutory notification data that will be sent to the LPS monitoring bodies by LPS Responsible Bodies under the draft LPS regulations.

Engagement Events

During consultation, we will be holding a number of small roundtable events to gather views throughout. This will include events with key delivery partners who sit on our LPS Steering Group, as well as events with people who are on the front line and will be delivering LPS day-to-day.

It is also essential that we hear from people that will be affected by this system so we will be running events specifically for people with lived experience. To ensure that these events are as representative as possible people will be able to register their interest in attending. We will provide more information on our plans for these events soon.

LPS key milestones

Although the Government confirmed in December 2021 that we would not set a new date for implementation until after consultation, with the consultation process soon to begin, we wanted to clarify the expected milestones over the coming months. We will update on the next stages once the consultation response is published, and we announce a new implementation date.

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