The Deprivation of Liberty Safeguards, a new beginning? The Liberty Protection Safeguards

13/03/2019

The Deprivation of Liberty Safeguards or DoLS as they are known are going to be replaced by a new legal process in the near future. On 3 July 2018 the government introduced a Bill into Parliament to end DoLS and replace them with the Liberty Protection Safeguards (LPS). At the time of writing LPS is at the end of its journey through Parliament and it is expected that LPS will become law in April 2019, but it will not start or come into effect until late 2020. This delay will allow organisations to prepare for the changes and train staff as needed.

What is changing and how will care homes be affected?

Firstly, for anyone who has followed the progress of LPS since it began its journey through Parliament it is important to note there have been many changes along the way. Originally for people in care homes, the care home manager was going to be responsible for carrying out all of the multiple assessments required for LPS. After intensive lobbying by both the care home sector and charities this burden and responsibility for care home managers has been effectively removed leaving care home managers responsible for one assessment under LPS.

Deprivation of liberty

DoLS and LPS in the future, are both procedures that authorise the deprivation of liberty of an adult who has not been able to consent. The practical reality of adults who lack mental capacity to consent to being in a care home and have restrictions placed on them to keep them safe remains unchanged. The ‘concept’ that a certain number of restrictions in care plan for such a person (for example the front door of the care home is locked, and the person is never allowed out alone) means they are deprived of their liberty also remains unchanged. What is changing however is the procedure or process for authorising such deprivations of liberty.

The large number of people affected is going to remain the same as under DoLS. The largest group of people affected by DoLS are older people with dementia in care homes and this will continue to be the case under LPS. For the year 2017-18 local authorities in England received just over 220,000 DoLS applications from care homes and hospitals. The government estimate for LPS is that there could be over 300,000 applications per year.

The backlog

One of the government's key reasons for changing DoLS to LPS is an attempt to get rid of the huge backlog of cases that has built up under DoLS. At present there are over 125,000 applications for DoLS that have not been assessed. In some parts of the country there are very large backlogs of cases that mean if a care home makes a referral it can take over a year for the person to be assessed. This means a person is unlawfully deprived of their liberty and denied the legal protection of the DoLS assessment and rights that follow once a DoLS is authorised (completed). The government contend that LPS will remove this backlog so that assessments will be carried out quickly and care homes and others do not have to wait for extended periods for LPS to be authorised (completed). It must be said however that whether this aim can be achieved is open to question. In reality unless there is adequate funding, the DoLS backlog may be replaced by an LPS backlog.

Of particular note is the fact that urgent DoLS are ended and instead the LPS equivalent can only be used for emergency treatment cases. This means that care homes will generally only ever use the main LPS process. In addition, LPS can be renewed which is less intrusive than under DoLS which required a full re-assessment of the person each time. LPS initially lasts up to one year and can then be renewed for another year and thereafter can be for up to three years at a time.

Some care home managers will be asked to complete one LPS assessment which requires the person concerned and their family to be consulted about the LPS. This assessment would then be sent to the local authority or CCG responsible.

Finally, LPS allows for people to be transferred between places. The precise details of this will be explained in the Code of Practice later but it appears that a person in a care home may be admitted to hospital for a few weeks and the LPS will remain the same and transfer with the person to hospital and back to the care home. Under DoLS such a move would end the DoLS and mean a new application by the hospital and then another new application by the care home when the person returned from hospital.

The end of Form 1?

Under DoLS, care homes had a legal duty to notify local authorities of a deprivation of liberty (DoLS form 1). This duty is removed under LPS, and it is the organisation funding a care placement (local authority or CCG) that is responsible. The government have however stated that care homes will still have to complete a form similar to the existing Form 1 for DoLS when LPS is introduced.

What stays the same(ish)

Although quite a few parts of DoLS are kept by LPS there are some subtle changes. For example, both DoLS and LPS provide a right to advocacy but in reality DoLS offers a better right to advocacy than LPS.

The care home experience of LPS?

Care homes may well find their experience of LPS is similar to DoLS. That is a person will come to assess the resident of the care home for LPS. They will undertake a series of assessments including identifying the restrictions in the care plan, confirming they are necessary to prevent harm to the person and identifying evidence the person has a mental disorder. That person may be from the local authority or CCG. After this the local authority will check the assessment and then issue an LPS authorisation to the care home with an expiry date. This will authorise a person’s deprivation of liberty resulting from the restrictions in their care plan.

A change will be that if the person is considered to be objecting to the care home placement or to the care or treatment then a second person will visit the care home to review the assessments. This person will be called an Approved Mental Capacity Professional (AMCP). AMCPs are a new role that replaces the previous role of Best Interests Assessor (BIA) under DoLS.

Rights

The point of the DoLS process and also the LPS process is that if a person is deprived of their liberty the assessment process aims to ensure it is necessary and proportionate to prevent harm to them. In addition, when a DoLS or LPS is completed the person concerned qualifies for a series of extra legal rights (protection). The rights under DoLS are transferred (with a few subtle changes) to LPS. They are:

  1. Appeal to the Court of Protection

  2. Review

  3. Advocacy – independent mental capacity advocacy (IMCA)

  4. Representative – the name changes to the Appropriate Person or an advocate

Care Quality Commission

The CQC will inspect on LPS just as they have inspected on DoLS and therefore they should ask questions about it during inspections and expect to see referrals for LPS authorisations. However, the good news (not yet confirmed though) is that the duty to inform the CQC of completed LPS authorisations should change from care homes to local authorities or CCGs (whichever is authorising the LPS).

Funding

The final piece of the jigsaw is funding. A major concern is whether the government will release adequate funding to ensure LPS works properly.

Steven Richards

11 March 2019

Director, Edge training and consultancy Ltd