[Update 5 April 2023. In light of the Government announcement that implementation of the LPS is delayed until after the end of the life of the current Parliament, the materials on this page are for reference only. I recommend watching this video instead.]
This page contains freely available resources on the Liberty Protection Safeguards, contained in the Mental Capacity (Amendment) Act 2019, which will come into force in due course to replace the Deprivation of Liberty Safeguards.
The background to the Act lies in the decision of the Supreme Court in Cheshire West: for resources related to that decision and its implications, see my dedicated resource page here.
My overview paper with the background to and an outline of the LPS can be found here. For a walkthrough recorded in January 2021, see here (nb, this predates the publication of the draft consultation, but remains accurate – save for the one slide with the timeline as it then stood, at which you can either laugh or cry, depending upon your point of view).
We do not yet have a date for the LPS to come into force. The next steps were set out by the DHSC in March 2022 thus:
A ‘shedinar’ examining what to do in the interim (recorded in December 2021) is here.
The slides for the presentation are here.
Primary legislation, regulations and other statutory materials
The Government was aiming for full implementation of LPS by April 2022, but on 16 December 2021 announced that this would not be possible. Some provisions, covering new roles and training, will come into force ahead of the full implementation date.
In March 2022, the Government produced the long-awaited draft Code for consultation. The consultation runs until 7 July 2022. There is a detailed consultation document, together with two easy read summary booklets, one focusing on the wider MCA guidance, and one on the LPS guidance, both available on the consultation page here. For my overview of the consultation/draft, see here, and for three video FAQs arising out of the consultation process, see here.
At the same time, there is also a consultation on 6 sets of draft regulations which will underpin the new system. When enacted, 4 of these sets of regulations would apply in England only. The remaining 2 sets of regulations would apply to both England and Wales. The regulations (in draft) are:
- Assessment, Determinations and Pre-Authorisation Reviews (England)
- Training and Approval for Approved Mental Capacity Professionals (England)
- Independent Mental Capacity Advocates (England)
- Consequential Provisions (England & Wales)
- Commencement, Transitional and Savings Provisions (England & Wales)
- Monitoring (England)
Separately, the Welsh Government has published 4 sets of regulations which would apply in Wales for consultation. These are (in draft):
- The Mental Capacity (Deprivation of Liberty: Eligibility to Carry Out Assessments, Make Determinations and Carry Out Pre-Authorisation Reviews) (Wales) Regulations 2022
- The Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (Wales) (Amendment) Regulations 2022
- The Mental Capacity (Deprivation of Liberty: Training and Criteria for Approval as an Approved Mental Capacity Professional) (Wales) Regulations 2022
- The Mental Capacity (Deprivation of Liberty: Monitoring and Reporting) (Wales) Regulations 2022
The DHSC is also publishing a number of documents to help the sector prepare for implementation. These are (all in draft):
- impact assessment – this constitutes the government’s assessment of the financial impact of LPS, including the Code and regulations, as proposed for consultation. This is the third iteration of the impact assessment.
- LPS workforce and training strategy – this covers:
- workforce planning
- the learning, development and training on offer
- what different organisations and sectors can do now to begin preparing for LPS
- LPS training framework – which makes recommendations about subject areas that LPS training should cover
- LPS National Minimum Data Set – which will be used to standardise the collection and submission of notification data that is sent to the monitoring bodies and NHS Digital
- Equalities impact assessment – which assesses the potential equality impact of the design of LPS overall, including the Mental Capacity (Amendment) Act 2019, the LPS regulations and the Code
The DHSC published on 8 July 2022 a set of template forms are designed to be used at key points in the LPS process when information needs to be transferred from one party to another. The template forms will also enable the recording of the LPS assessment information which will be required for authorisation. There are nine draft template forms:
Template 8 – referral for final authorisation nb: this is actually misnamed. What it really is is a third party referral form to identify that an LPS authorisation may be required; hence why I have put it first.
Welsh Government is conducting its own consultation on specific aspects in Wales (which includes an interesting additional set of criteria set out in the regulations above for people to be eligible to carry out the assessments and determinations for LPS purposes). As part of this, Welsh Government has published its own set of documents, including a specific children’s rights impact assessment. There is also a helpful set of FAQs about LPS in Wales. Welsh Government have developed their own draft template forms (working with a Task and Finish Group) which they will share with stakeholders shortly.
The DHSC has now started to produce materials relating to the LPS, and has created a dedicated LPS document collection page.
Factsheets (note, however, that these pre-date the draft Code, so the draft Code gives a fuller sense of what DHSC is envisaging in relation to these areas):
1: “Liberty Protection Safeguards: what are they?” (September 2020)
2. Liberty Protection Safeguards: overview of the process (November 2020)
3. Liberty Protection Safeguards: settings and Responsible Bodies (January 2021)
4. Liberty Protection Safeguards: criteria for authorisation (June 2021)
10..Liberty Protection Safeguards: young people and Responsible Bodies (August 2021)
Minutes of LPS Steering Group
As part of the consultation on the Code and LPS implementation, the DHSC has also published easy read versions (in draft) of the parts of the Code relating to the LPS and also the main body of the Act, both available here.
Reflecting the fact, although the MCA 2005 is a subject matter which is reserved to the UK Parliament, the MC(A)A 2019 contains regulation making powers for the Welsh Ministers to implement the LPS in Wales, Welsh Government is publishing its own materials in relation to such implementation, most easily accessed through its consultation page here.
SCIE has a good and expanding resources page here.
An overview prepared for the House of Commons Library (not as an official Government document) by Judy Laing can be found here. The briefing also links out to other background materials prepared for the Library.
A good summary by Tim Spencer-Lane, who led the project at the Law Commission which led to the Bill (and to which I acted as consultant) and was then involved in the passage of the Bill itself, can be found here. Tim has also produced a summary of the draft Code as it relates to LPS here, and a helpful outline of how the DHSC envisages LPS working here.
My colleague Neil Allen has set up a very useful website, LPS Law, which covers the LPS and a great deal MCA-related as well.
Hill Dickinson maintains a resources page here, including recordings of update webinars.
If you have a freely-available commentary that you think should be on here, please do email me, although I reserve editorial rights to determine whether to put it up. As LPS is now a-coming and debates about whether or not it is a ‘good thing’ are of interest but of only limited practical significance, I am primarily interested in commentary which:
(1) flags up particular issues that will have to be addressed in implementation;
(2) flags up things that can be done ahead of implementation.