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.
For a background and walkthrough, recorded in January 2021, see:
Primary legislation, regulations and other statutory materials
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 revised impact assessment was published on 28 January 2021. This assessment covered the policy at the time of the primary legislation and did not take account of policy detail set out in the draft regulations (these will be covered by future impact assessments).
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. There will be six sets of regulations, DHSC having, so far, identified what five 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 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.
In its 5th LPS Newsletter, the DHSC provided an indication of 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 LPS team indicated that the content, titles and ordering of chapters may change slightly as they finalise the draft Code for public consultation.
The DHSC has now started to produce materials relating to the LPS, and has created a dedicated LPS document collection page.
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)
Minutes of LPS Steering Group
SCIE has a good and expanding resources page here.
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.
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.