Under the Mental Capacity Act (MCA) 2005, people can be deprived of their liberty in certain circumstances when authorised health and care professionals, in consultation with a person’s family and/or advocates, agree that person lacks capacity to make decisions in their best interests.

The Deprivation of Liberty Safeguards (DoLs) were put in place to ensure that those who were unable to consent to their care arrangements in a care home or hospital were protected if those arrangements deprived them of their liberty. The new scheme, the Liberty Protection Safeguards (LPS), seeks to maintain those protections, but is an attempt to streamline the process with a view to making it run more smoothly. It also widens the scope to treat people, and deprive them of their liberty, in a medical emergency, without gaining prior authorisation.  The target date for implementation is October 2020.

There are several notable features of the new LPS:

  • The DoLS currently apply only to people living in registered care or nursing homes and those in hospital. The LPS will apply to people living in any circumstances.
  • LPS must be authorised in advance by a “responsible body”: under DoLS, this used to be the local authority but this has been extended so that if someone is in an acute hospital, it will be a hospital manager; if someone is in receipt of Continuing Healthcare Funding, the clinical commissioning group would be the responsible body; in the case of deprivations taking place in a care home or the community, it will continue to be the local authority.
  • For the responsible body to authorise any deprivation of liberty, it needs to be clear that the person: lacks the capacity to consent to care arrangements; that the person has a mental disorder; and that the arrangements are necessary to prevent harm and are proportionate to the likelihood and seriousness of that harm.
  • The DoLS only apply to persons 18 years or over. The new LPS will apply to anyone over 16, so they do need to be understood by a range of children’s services.
  • Complex cases and cases where the person is objecting to the proposed current care arrangements will be referred to a new Approved Mental Capacity Professional (AMCP). The AMCP will take over the role of the Best Interests Assessor, whose role will cease to exist under the new LPS scheme.
  • Under DoLS, a deprivation of liberty can be for a maximum of one year initially. Under LPS, this can be renewed initially for one year, but subsequent to that for up to three years.

Although the legislation introducing the LPS (Mental Capacity (Amendment) Act 2019) has already been given Royal assent, the practical details are yet to be explained in a new Code of Practice which is currently being developed. It is hoped that this Code of Practice will bring more clarity to this complex area.

For further information or advice, please contact our Private Client team on privateclient@bpcollins.co.uk or call 01753 279030.

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