This page contains freely available resources on the Liberty Protection Safeguards, contained in the Mental Capacity (Amendment) Act 2019, which are due to come into force in April 2022 to replace the Deprivation of Liberty Safeguards. A ‘shedinar’ examining what to do in the interim (recorded on 31 July 2020) can be found here.
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.
Primary legislation, regulations and other statutory materials
The Act itself can be found here. The Explanatory Notes can be found here. Links to debates and other official documents produced during its passage here. We do not yet have regulations, or the Code of Practice that will be required to before the Act can come into force, but they will be added here in due course. The Government is aiming for full implementation of LPS by April 2022. Some provisions, covering new roles and training, will come into force ahead of that date. As at July 2020, the anticipated time-line is as set out in the written statement made to Parliament on 16 July by the Care Minister, Helen Whateley:
The Government will undertake a public consultation on the draft regulations and Code of Practice for LPS. That will run for 12 weeks, allowing sufficient time for those that are affected, including those with learning disabilities, to engage properly.
The sector will need time following the publication of the final Code to prepare for implementation. We will give the sector sufficient time to prepare for the new system to ensure successful implementation. I am considering a period of approximately six months for this.
After we have considered responses to the consultation, the updated Code and regulations will need to be laid in Parliament to allow for proper scrutiny. This needs to happen well in advance of the target implementation date, first to allow for that scrutiny and second because some of the regulations need to come into force earlier.
In September 2020, in the second of its LPS newsletters, the DHSC set out its provisional timetable as follows:
The DHSC has now started to produce materials relating to the LPS.
1: “Liberty Protection Safeguards: what are they?” (September 2020)
My overview paper with the background to and an outline of the LPS can be found here.
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.
An admirably short and to the point summary by Hannah Nicholas at Hill Dickinson can be found 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.
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.
Until the regulations and the Code of Practice are published, there is still substantial flesh to be put on the bones of the legislative scheme. I strongly suggest that you are cautious about checking whether commentaries and/or training relating to the Act make clear the extent to which they contain speculation and, where they do, the basis upon which that speculation is advanced.