Liberty Protection Safeguards (LPS) … what now?

Estimated reading time: under 6 minutes

A person’s capacity, and when and how they can be deprived of their liberty is important as we all have a fundamental right of autonomy.

Mental capacity sits at the core of all safeguarding work as assessment of an individual’s capacity is crucial to negotiating risk and protection (see Sally Lee, Rebecca Johnson, Lee-Ann Fenge and Keith Brown 2017 p252).

The Mental Capacity Act (MCA) 2007 embodies the two threads of empowerment and protection within the five statutory principles set out in section 1. They reflect two competing demands that must be carefully balanced: a person’s right to make their own decisions and their right to be protected where this is not possible (Dan Baker, p128 Mental Capacity Act and Adult Safeguarding, in Safeguarding Adults Under the Care Act 2014).

Deprivation of Liberty Safeguards (DoLS) were introduced under the Act in 2009 to provide legal authority to care for people in care homes and hospitals who lacked the mental capacity to consent to their arrangements, and were under high levels of care and supervision, prompting an assessment to recommend an authorisation for the person to be deprived of their liberty with the necessary safeguards applied.

Work to replace DoLS with a new framework that better protects the human rights of vulnerable adults detained in care settings started in March 2014, following two key events - the House of Lords Select Committee on the MCA 2005 which declared that DoLS was ‘not fit for purpose’; and the ‘Cheshire West’ Supreme Court judgement which lowered the threshold, dramatically increasing the number of DoLS (see Lorraine Currie writing in Community Care 12th April 2023).

The proposed new Liberty Protection Safeguards (LPS) have been the focus of much attention, discussion, and activity since the Mental Capacity (Amendment) Act 2019 provided their legislative basis, but the implementation date was continually pushed down the road. And now a full stop?

On April 6th, 2023, the government announced that implementation has now been delayed ‘beyond the life of this Parliament’. This could be until December 2024 if there isn’t a general election before then.

As Alex Ruck Keene helped make clear in his excellent shedinar – LPS on the shelf – what to do now: video – this does not mean LPS will be delayed until 2025 but that the decision about whether to bring the new legislation even into force is a decision for the next government. As Alex said:

‘we need to see it that the Liberty Protection Safeguards are effectively not coming into force unless a decision is taken actively to implement them’

VoiceAbility, the country’s leading advocacy providers, called it a ‘an unacceptable blow’ to the thousands of people currently unlawfully deprived of their liberty. The Association of Directors of Adult Social Services (ADASS) are also expressing concerns and the Welsh Government called the decision to delay implementation of the scheme, which would apply in England and Wales, ‘deeply disappointing’.

Where do we find ourselves now? Perhaps feeling that work has been wasted. While a surprising announcement, we have an opportunity here too.

Here are four things we can do:

1. Keep a focus on some previously overlooked areas, such as the concepts of necessity and proportionality in our assessments of capacity. These are key part of the existing MCA and not a new thing that LPS was to introduce. Alex says ‘frontload your thinking’ ie keep these issues at the front of your mind in support of good mental capacity assessment, knowing the person in your care which we should do anyway as part of good care planning.
   
   
2. Keep a focus on the need to identify deprivation of liberty for 16- and 17-year-olds – the MCA applies to these younger people too, and is often overlooked.
   
   
3. To help with good mental capacity assessment why not try using the template assessment form on the NSAB website? It gives you a worked example with suggested prompts to complete an effective assessment. This is an example only, and you can delete the guidance and use as a template.
   
   
4. Working with Vikki Bunting from Adult Social Care and Kate Brolley from the Norfolk and Waveney Integrated Care Board safeguarding adults team NSAB have been exploring how we might build an MCA network or ‘community of practice’.
   If you are interested do get in touch.

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Take 5 and tell 2 …

I happened to hear an item on Radio 4’s ‘You and Yours’ while grabbing a bit of lunch. It was telling listeners about recent scams appearing on Instagram in multiple posts claiming you have won a gift card for fashion shopping site Shein. The accounts making these posts have nothing to do with Shein and, if you follow the links, you’ll eventually be asked for your card details and charged a small amount of money for the delivery of the card but will never receive it.

Instagram users who encounter the scam will generally see that they have been tagged in a photo by an account they don’t recognise. If you have a public Instagram account, your privacy settings may allow others to tag you in photographs and posts.

You can stop this by making your account fully private. To do this, go to your own profile, then tap the three bars at the top and open ‘Settings’. Open your ‘Privacy’ settings and toggle the ‘Private account’ option at the top. But, if you want to keep your Instagram profile public, there is another way to limit how other accounts interact with you.

On your ‘Privacy’ settings, you can find ‘Posts’. Here you can change ‘Who can tag you’, choosing from options of everyone, no-one, or only people you follow.

In addition, if you receive any sort of message which looks like a scam, take 5 minutes to ‘step back’ and think about any email, social media message or any communication you have received before doing anything and then tell two other people about the message. They might have identified this as scam or if they haven’t received it, it is helping keep them safe too.

Thank you.
Walter Lloyd-Smith
NSAB Board Manager

Email: [email protected]