Liberty Protection Safeguards update March 2021 – what will the Code of Practice be likely to cover?

In the 5th LPS Stakeholder Newsletter published on 26 March 2021, the DHSC LPS team have provided a useful update on the Code of Practice, as below.

We are making good progress on a draft of the proposed Code of Practice for LPS, for public consultation. As we have explained before, detailed information about LPS will feature as distinct chapters within an updated version of the overall MCA Code of Practice – so in fact there will be only be one Code document, not two. This will help to clearly align LPS practices with the overarching principles of the MCA, minimise repetition and allow for helpful cross referencing between chapters within the Code.

 Many stakeholders and experts by experience have helped us with drafting the LPS sections of the Code in previous months and years. We are grateful for their considerable input and have considered all of their advice in producing a draft for public consultation. We expect the updated MCA Code to consist of 25 chapters, listed below. Working from earlier drafts, which some of you will have seen, we have merged some chapters to try and make information on LPS as clear as possible. We will be asking for your feedback on this draft, once we reach public consultation.

 Our next step is to share a draft of the Code with the National LPS Steering Group, in April.

 The proposed chapters of the MCA Code of Practice, for public consultation, are:

 What is the MCA 2005? (Including an introduction to LPS.)

    • What are the statutory principles and how should they be applied?
    • How should people be helped to make their own decisions? (Also covering ‘How the Person is Involved’ and ‘Information Rights’.)
    • How does the Act define a person’s capacity to make a decision and how should capacity be assessed?
    • What does the Act mean when it talks about “best interests”?
    • What protection does the Act offer for people providing care or treatment?
    • What is the role of the Court of Protection? (Also covering ‘LPS Court of Protection’.)
    • What does the Act say about the Lasting Powers of Attorney?
    • What does the Act say about Deputies?
    • What is the Independent Mental Capacity Advocate (IMCA) Service? (Also covering ‘LPS IMCAs’.)
    • What does the Act say about advance decisions to refuse treatment?
    • What is a Deprivation of Liberty?
    • What is the Overall LPS Process? (Also covering ‘If I think there is a DoL’.)
    • What is the role of the Responsible Body? (Also covering ‘Correct Responsible Body, Responsible Body Oversight of LPS’ and ‘Cross Border Working’.)
    • What is the role of the Appropriate Person?
    • What are the Assessments and Determinations for LPS?
    • What is the LPS Consultation?
    • What is the role of the Approved Mental Capacity Professionals (AMCP)?
    • What is Section 4B, and how is it applied?
    • How is the LPS system Monitored and Reported on?
    • How does the Act apply to children and young people? (Also covering ‘LPS 16-17 Year Olds’.)
    • What is the relationship between the Mental Capacity Act and the Mental Health Act 1983? (Also covering ‘Interface between LPS and the MHA’.)
    • What are the best ways to settle disagreements and disputes about issues covered in the Act? (Also covering ‘LPS Challenging Arrangements’.)
    • What rules govern access to information about a person who lacks the relevant capacity?
    • How does the Act affect research projects involving a person who lacks the relevant capacity?

The content, titles and ordering of chapters may change slightly as we finalise the draft Code for public consultation.

The Newsletter also covered LPS and the Health and Social Care Bill as follows:

The White Paper: ‘Integration and Innovation: working together to improve health and social care for all’ was published on the 11th of February. In this, the Government set out its intention to establish statutory Integrated Care Systems (ICSs). These plans propose that ICSs will carry over many of the core functions of Clinical Commissioning Groups (CCGs), whilst also taking on new roles to move towards a more integrated health and care service, at a local level.

The role of CCGs as the Responsible Bodies in England under LPS is tied to their commissioning role for Continuing Health Care (CHC). As a core function of CCGs, we expect CHC to become the responsibility of the new ICSs, and therefore the Responsible Body function under LPS will also transfer to ICSs.

We are continuing to work closely with the teams leading the work on these reforms, and CHC overall, both at DHSC and NHSE, as this policy develops. We will keep stakeholders updated of any changes that affect LPS, including what this means for implementation.

The Newsletter also identified what needs to happens before the LPS is implemented:

Before LPS is implemented, the safeguards provided by the DoLS still apply. Legal duties to determine if someone is, or will be, deprived of their liberty as a result of the arrangements for their care and treatment, remain. If this is the case, then legal authorisation is required and it is important that decision-makers comply with their existing legal requirements for this. For adults residing in a care home or hospital, this would usually be provided by the DoLS. If the person is aged 16-17, or residing in any other settings, then an application to the Court of Protection should be considered.

Decision-makers should always consider less restrictive options for that person. They should avoid depriving someone of their liberty unless it is absolutely necessary and proportionate to prevent serious harm to the person.

Last year, the Local Government and Social Care Ombudsmen issued a decision that is relevant to DoLS practice before LPS is implemented. This is just one example but practitioners may wish to have a look and consider the potential implications for their own work.

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