An update on the Liberty Protection Safeguards

Related Sector: Health & Social Care

The Liberty Protection Safeguards will provide protection for people aged 16 and above who are or who need to be deprived of their liberty in order to enable their care or treatment and who lack the mental capacity to consent to their arrangements.

The assessment process will be embedded into existing care planning. As a Responsible Body (hospital manager of a hospital, CCG, LA) you will co-ordinate the whole assessment process from organising assessments,  reviewing and ultimately authorising the deprivation of liberty internally.  

As the scheme is extended to 16 and 17 year olds and to domestic settings and creates new roles for Local authorities, CCG’s and Trusts in authorising arrangements it is essential that all staff are suitably trained.

Sue Inker, Lawyer and Subject Matter Expert in MCA, discussed the following:

• Implementation of LPS to be delayed
• So long, farewell, goodbye to care home managers
• Next significant milestones for the LPS
• What you could be doing to prepare?

Recent developments

• Implementation of LPS to be delayed

As was discussed and anticipated in our article published on the 24^th June 2020 which, if you missed it, you can read here, we commented that it was very likely that the implementation of the LPS would be delayed beyond 2020.  Subsequently, the Government announced on the 16^th July 2020 that the original implementation date is postponed until April 2022.

We believe that this has granted health and social care a window of opportunity to properly prepare for the LPS.

• So long, farewell, goodbye to care home managers

In published minutes of the LPS steering group meeting held on the 13^th October 2020 it was revealed the Government would not be bringing in the role of the care home manager within the LPS system, so we can safely say that contentious aspect of the Act will not be implemented for now. 

• Next significant milestones for the LPS

The DHSC have developed a high level time-line and the next significant milestones will be the revised impact assessment this Autumn, and the publication of a combined Code of Practice which will include the LPS Code and an updated MCA Code. In addition six sets of regulations will be produced all for consultation in Spring 2021.  

• Regulations

Three of the six sets of regulations will directly relate to BIA/AMCP training, to the transitional arrangements, and to who will be able to carry out assessments.   It is anticipated that the regulations will deal with the following:

• Eligibility criteria and statutory training needed to be an Approved Mental Capacity Professional (AMCP).
• Required training for a conversion course for Best Interests Assessors (BIAs) under the Deprivation of Liberty Safeguards (DoLS) to become AMCPs under LPS.
• An explanation of which bodies will deliver the required training for the AMCP role
• Confirmation that Practicing Social workers, nurses; Speech and Language Therapists, psychologists and occupational therapists will be eligible for the AMCP role.   
• Transitional regulations setting out the legal framework for LPS and DoLS to run alongside each other for the first year of implementation.
• Outline of who is able to carry out assessments and determinations under LPS. 

What you could be doing to prepare?

General training

We don’t know whether your view is to start training your staff now on the LPS, or waiting until the regulations and code are agreed and published.  Either way we would be happy to deliver training at any level on the overview of the LPS now should you require it, or detailed training once the operational details in the Code/Regs are published. 

BIA/AMCP training

We do know that the new training for the AMCP role will be set out in the Regulations and we are keeping an eye out for who will be able to deliver that training to ensure we are first to market with our university partner.

In the meantime, have you thought about training your staff to be Best Interest Assessors now ? 

What are the benefits you ask – well here are our Top 10 benefits

1. Training as a BIA promotes legal literacy around the application of the Mental Capacity Act 2005 ensuring the MCA is core business in your organisation
2. Training as a BIA will ensure CCG’s and Trusts have sufficient staff to transition into AMCP role in 2022
3. Training as a BIA now will promote the culture shift necessary in organisations to move into the LPS in 2022
4. The LPS will be integrated into care planning and training your staff as BIA’s now will ensure they are well versed with the relevant legal principles to enable them to convert into the new system and process effortlessly
5. In the two years before the LPS are implemented your newly trained BIA’s could be allocated to work through the backlog of assessments to enable a smooth transition in 2022
6. As the Department of Health and Social Care stated “it is expected that existing BIA’s will be fast tracked into the new AMCP role” and the regulations are expected to specify a reduced conversion course for existing BIAs into the new AMCP role,  training all your staff as BIA’s will enable you to select suitable staff to move swiftly into the new AMCP role
7. Training your staff as BIA’s will ensure you have sufficient “appropriate” well qualified staff for the role of the pre authorisation reviewer
8. Having staff trained as a BIA will ensure you have plenty of staff to work through the first year transitional period when it is expected that the LPS and DOLS will run parallel
9. Increasing the numbers in the workforce qualified as BIA’s will assist organisations in coping with the additional workload expected by the implementation of the LPS due to its increased scope to include 16/17 year olds and community cases
10. Training your senior staff who will undertake the role of signatory as BIA’s now will equip them going forward into their new role

Bond Solon delivers a BIA qualification on in-house and public basis.  For more information please click here

Author: Sue Inker, Lawyer and Subject Matter Expert in Mental Capacity
This article was first published on Wednesday 9^th December 2020.

Best Interest Assessor Course and Qualification

Bond Solon’s BIA qualifying course has been designed to ensure that learners gain the required skills and specialist knowledge to complete Best Interest Assessments to best practice. Find out more about this course here