LPS update – goodbye care home managers (and hello some ideas about draft regulations)

In the minutes of the LPS Steering Group meeting held on 13 October 2020, published as part of the new LPS documentation page, it was revealed that the Government has decided that it would not bring these provisions into force in April 2022.  The minutes of the LPS Steering Group meeting on 13 October 2020 explain the position:

DHSC officials acknowledged that the role of the care home manager in the MC(A)A2019 has always been contentious. They explained that the Government has heard representations from across the sector, both for and against this role, and considered its potential very carefully. The Government has decided not to implement this aspect of the MC(A)Ain England, for now. The relevant provisions in the Act will therefore not be commenced in April 2022.

The care home manager role was originally designed so that people who know the person and understand their wishes and feelings, could lead the LPS process, with the added benefit of reducing the burden on local authorities and CCGs. These aims are still valid, but the Government has decided that now is not the right time to introduce the role. Instead, the Government will focus on introducing all other aspects of the LPS; and working productively with stakeholders to ensure that implementation in 2022 is a success. Staff who care for the person every day and therefore know them best will, alongside the person’s family and friends, still play a vital role throughout the assessment process and during the consultation stages of the LPS process, in particular by helping decisions makers to establish the person’s wishes and feelings. The Government will keep the case for the role under review as it prepares for LPS, and as the system is implemented. The Government’s thinking on this issue will also be informed by responses to the public consultation on LPS, planned for 2021.

For my part, this seems to me an eminently sensible decision (and not just because the care home manager proposal had not appeared in the underlying Law Commission proposal).  It caused deep unease amongst many – including many care home managers who felt that they were put in an impossibly conflicted position.  It  also looked like, in many cases, simply being unworkable because of the need to provide so many restrictions upon whom the care managers could call upon that it would have ended up being more complicated and more expensive than simply having the responsible body coordinate the assessment process.

The minutes of the meeting set out DHSC’s position as to what five of the six anticipated sets of regulations will cover:

  • The Independent Mental Capacity Advocate (IMCA) role under LPS will be set out in regulations. These regulations will amend existing IMCA regulations set out under the MCA. IMCAs will, for example, have the power to prepare a report in relation to the arrangements or proposed arrangements for the Responsible Body.
  • Eligibility criteria and statutory training needed to be an Approved Mental Capacity Professional (AMCP) under LPS will be set out in a distinct set of regulations. Required training will include a conversion course for Best Interests Assessors (BIAs) under the Deprivation of Liberty Safeguards (DoLS) to become AMCPs under LPS. The regulations will explain which bodies will deliver the required training for the AMCP role. Practicing Social workers, nurses; Speech and Language Therapists, psychologists and occupational therapists will be eligible for the AMCP role.   These regulations will also include a definition of a prescribed connection to a care home. Individuals who meet that definition will not be able to act as an AMCP in certain cases.
  •  A set of transitional regulations will set out the legal framework for LPS and DoLS to run alongside each other for the first year of implementation. This will ensure that people who are subject to a DoLS authorisation or a Court Order, that runs into the first year of LPS implementation, are still able to access the necessary safeguards until their authorisation or Order ends.
  • A set of assessments regulations will set out who is able to carry out assessments and determinations under LPS.
  • A set of consequential regulations will amend other pieces of legislation that will need updating as a result of the MC(A)A2019.

The policy decisions needed to inform drafting of the sixth set of regulations governing monitoring and reporting of LPS in England would work are still being made.  The policy decisions needed to inform drafting of the sixth set of regulations governing monitoring and reporting of LPS in England would work are still being made.  The draft regulations will from part of the public consultation in Spring 2021 and the Government will take into account the outcome of that consultation before it takes final decisions about the design of LPS.

The next major milestone is likely to be the publication of the revised Impact Assessment in Autumn 2020. This assessment will cover the policy at the time of the primary legislation and will not take account of policy detail set out in the draft regulations (these will be covered by future impact assessments).

My LPS resources page has been updated to take account of these developments, as has my guide to LPS.

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