Related Sector: Health & Social Care

The 16 weeks public consultation on the MCA Code of Practice and implementation of the Liberty of Protection Safeguards (LPS) has now begun.
Alongside the Code of Practice, six sets of draft regulations have been published - four applying to England only and two to England and Wales. The regulations relate to aspects such as the six competency groups that will operation under the LPS, including training requirements for the new Approved Mental Capacity Professional (AMCP), conversion courses for Best Interest Assessors (BIAs) and what qualifies someone to carry out assessments. This consultation will not lead to any rewriting of the regulations but only on the policy details which underpin regulations. The Welsh Government is holding a separate consultation on certain aspects of the LPS design in Wales to include secondary legislation.

Documents to support the sector along with engagement events can be found here.

LPS key milestones

LPS Timeline

Source: DHSC LPS Policy Team

As the draft Code of Practice and regulations have just been published, our MCA/DoLS subject matter experts, Sue Inker and Max Duddles, will explore:

  • Why the LPS matters to healthcare and social care practitioners?
  • How can practitioners best prepare themselves for the LPS?
  • What can Bond Solon do to help?

Why does the LPS matter?

Culture. Fundamentally the LPS is about protecting the rights and freedoms of people aged 16 and above who are or who need to be deprived of their liberty. Therefore, the aim of the LPS is to advocate a cultural shift so that every single member of staff who comes into contact (directly or indirectly) with someone who lacks capacity to consent to care, medical treatment and other arrangements has that person’s human rights at the very heart of every decision they make.

Law. The LPS update will abolish the role of ‘’supervisory body’’ and replace it with ‘’responsible body’’. This new role will be allocated to different bodies depending on the situation. For example, in some cases, the responsible body will be the NHS Trust, and in others it will remain with the local authority. What is clear across the board is that the update will more heavily enforce the requirements on responsible bodies to comply with the law in a way that is fair, reasonable, proportionate, necessary and justified.

A second chance to get this right. In 2014, a House of Lords committee report found that the DoLS were not fit for purpose and that the MCA was failing to protect vulnerable people because of improper and unsatisfactory implementation.

The Chairman of the Committee, Lord Hardie said:

“When the Act came into being, it was seen as a visionary piece of legislation, which marked a turning point in the rights of vulnerable people…however, what is clear from the substantial volume of evidence we have received is that the Act is not working at all well. That is because people do not know about the Act, or do not understand it, even though many professionals have legal obligations under it. Those who may lack capacity have legal rights under the Act, but they are not being fulfilled. In many cases complying with the Act is treated like an optional add-on – nice to have, but not essential. In short, the Act is not being implemented.’’

The LPS gives public authorities a second chance to changes their internal processes and get on board with this necessary cultural shift, so that the protection of vulnerable people is at the heart of every decision they make.

How can practitioners best prepare themselves for the LPS?

Define. Although there is no statutory definition of ‘’deprivation of liberty’’ in the Mental Capacity (Amendment) Act 2019 the draft Code offers the Government’s interpretation in policy of what a deprivation of liberty is and when it will occur. Therefore, organisations must ensure that all their staff fully understand and can identify a potential deprivation of liberty for people aged 16 and above, now, under the ‘’Acid Test’’ set by the Supreme Court in the Cheshire West case. They must understand that this may change going forward in line with the draft Code of Practice, as well as appreciate that the LPS expands the settings where an authorisation can be given.

Legal Literacy. Organisations must empower and require all staff to understand their responsibilities under the current legal framework by ensuring that they can confidently grasp the technical language of the MCA from a rights-based perspective, with an understanding of the procedures for implementing the legal rules for authorisation.

Front load. Organisations must ensure that within care and discharge planning, staff properly consider whether a non-consensual deprivation of liberty would occur if the plan was put into effect, and if so, that the correct legal safeguards are in place before the deprivation of liberty occurs. Not only will this help current BIAs in their role, but it will also help to address any backlog, and crucially ensure that the current law is embedded within the organisation before the duty to comply arises.

Audit. Organisations should carry out an audit of their current compliance/backlogs for DoLs or Community DoLs authorisations.

Target. Think carefully about what divisions and who within your organisation will need to be trained on the new rules and processes. Ensure that these people are targeted for training as expeditiously as possible.

What can Bond Solon do to help?

We strongly recommend that over next the 12 –18 months organisations take time to refocus on the MCA and DoLS to ensure that their employees have thorough legal literacy and technical knowledge to lay the foundations for the LPS.

We will be offering training at all levels to meet the needs of each level on the new LPS Workforce and Training Triangle, including:

  • A one-day Essential Toolkit on MCA, DoLS and LPS, designed to prepare all healthcare and social care staff for the LPS update.
  • A two-day advanced level Masterclass on MCA, DoLS and LPS for staff leading or managing the implementing of LPS in their organisation.
  • A BIA qualification, for those looking to gain the most legal literacy in this area of the law, who will then be best placed to transition into many of the new roles under the LPS.
  • Online BIA Statutory Legal Update, for those who need to maintain or reactive their BIA qualification

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