Legal Opinion

The impact of the Liberty Protection Safeguards – are you ready?

Sophie Maloney, Solicitor, Court of Protection and Community Care Department, Stephensons Solicitors LLP

The Liberty Protection Safeguards (“LPS”) are due to replace the DoLS system and are expected to be implemented in October 2020. The LPS bring some changes to the process for authorising a deprivation of liberty, and provides opportunity for some of the processes currently undertaken by the Local Authority to be delegated to care home managers.

What is going to change? – Key points for care home managers:

  1. There will no longer be the two roles of ‘supervisory body’ and ‘managing authority’, there will just be one ‘responsible body’. Responsible bodies will be:
  • Hospital managers, for any arrangements in an NHS hospital;
  • The CCG or Local Health Board: in cases where a person is eligible for continuing healthcare;
  • Local Authority: in all other cases.
  1. In the original proposal for the new system, the care home manager was to arrange the relevant assessments for the authorisation. However, it has now been confirmed that the responsible body will in almost all cases decide whether it should carry out the assessments, or whether it should be led by the care home manager- so the Local Authority has the option to delegate responsibilities to the care home manager.
  1. Where responsibilities have been delegated, the care home manager is to provide a statement to the responsible body confirming several things, including that:
  • The arrangements give rise to a deprivation of liberty;
  • The care home manager has carried out consultation (including with the person, family members and anyone interested in their welfare), and evidence of this;
  • It has been determined that the person lacks capacity to consent to the arrangements, and the person has a mental disorder (exhibiting a record of these assessments);
  • Exhibiting a draft ‘authorisation record’, specifying the authorised arrangements, duration of the authorisation, and process for review.
  1. The care home manager, or anyone with a connection to the care home, will not:
  • Be able to undertake the assessments themselves;
  • Be able to make the decision as to whether the deprivation of liberty is necessary and proportionate.
  1. The responsible body can also delate tasks in relation to a renewal of an authorisation to a care home manager to confirm that:
  • The conditions continue to be satisfied
  • Consultation has been carried out and;
  • It’s unlikely that there will be any significant change in the person’s condition during the renewal period which may affect whether the conditions are met.
  1. LPS authorisations can be renewed in the first instance for one year, and thereafter for periods of up to three years.

What next?

It is anticipated that the LPS will come into force in October 2020, the date is yet to be confirmed. The current DoLS system will run alongside the new LPS system for up to one year to ensure smooth transition.

The government is currently working on the LPS Code of Practice, expected to be published in Spring 2020. More detail about the procedure and practice of the LPS is expected to be contained in the Code of Practice. Watch this space!

The Court of Protection Department at Stephensons can provide clear advice to care home managers, commissioners and providers in respect of the new changes, to ensure compliance with legal duties and to prepare for the LPS.

 

 

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