LPS Liberty Protection Safeguards
February 2023 - we are still waiting for the implementation of LPS, and the phasing out of of Deprivation of Liberty Safeguards (DoLS).
Currently a DoLS application involves a number of different assessments taking place, but there was a review by the House of Lords in 2014 that said the DoLS process wasn’t really working as intended, and so in May 2019 the Mental Capacity (Amendment) Act brought in a new system called Liberty Protection Safeguards (LPS).
This has been subject to repeated delays, and there is still no firm date for it to come into force.
However it still remains essential to have a solid understanding of the Mental Capacity Act, so that it is why NSAB continues to promote and support this across our safeguarding and wider networks.
You can find a useful 4 minute animated video that helps to explain LPS on the elearning for healthcare site here (it is relevant for anyone, not just health staff):
(thanks to NCC adult social care for this material)
These key changes will come into effect when LPS replaces DoLS.
- DoLS applies to people aged 18 and over. When a 16 or 17 year old is deprived of their liberty this can only be authorised by the Court of Protection
- LPS applies to 16 and 17 year olds as well as people aged 18 and over.
- DoLS applies to people in hospitals and care homes. When someone is deprived of their liberty in any other setting, this can only be authorised by the Court of Protection
- LPS applies to people in any setting, including supported living, housing with care, their own home or living with family members.
- Under DoLS, the Local Authority is the Supervisory Body, responsible for arranging the assessments and authorisation of deprivations of liberty.
- Under LPS there will be new Responsible Bodies, responsible for the assessments and authorisation under LPS and identified by where the deprivation of liberty is mainly taking place:
- For people in an NHS hospital, it will be the hospital trust
- For people in an independent hospital, it will be the Local Authority.
Otherwise, if the person’s care is funded by NHS Continuing Healthcare, it will be the Integrated Care Board (ICB).
For everyone else, it will be the Local Authority.
Moving between settings
- A DoLS authorisation can only cover one setting – the care home or hospital which has made the application
- An LPS authorisation can cover more than one setting, e.g. for someone who lives in their family home and attends a day centre.
Who carries out the assessments
- DoLS applications are dealt with by a specialist team within the local authority, usually once the person is already being deprived of their liberty
- LPS moves deprivation of liberty ‘to the frontline’. Consideration of LPS should be embedded in care and support planning, rather than considered separately. This will take place before the deprivation occurs in many cases, as part of care and support planning.
Best Interests Assessors
- Specialist Best Interests Assessors (BIAs) carry out assessments under DoLS
- The role of BIA will be replaced by the Approved Mental Capacity Professional (AMCP). The role of the AMCP will be to carry out pre-authorisation reviews where it is reasonable to believe that the person may object to the arrangements, when the person is in an independent hospital or in other complex situations where it is agreed that an AMCP needs to be involved.
Number of assessments
- There are 6 assessments under DoLS: age assessment, no refusals assessment, mental capacity assessment, mental health assessment, eligibility assessment and best interests assessment
- There will be 3 assessments under LPS: mental capacity assessment, medical assessment and necessary and proportionate assessment.
- DoLS authorisations can last for up to 1 year and cannot be renewed. A new authorisation is required if the person is still deprived of their liberty
- LPS authorisations can last for up to 1 year, can be renewed for up to 1 more year, and after that can then be renewed for up to 3 years.
In early 2022, the draft form of the revised MCA Code of Practice was been published for consultation - it includes more detail around LPS. For an overview, see this quick guide from Community Care.
The government published (11 June 2021) six factsheets about the Liberty Protection Safeguards.
- Criteria for authorisation
- Appropriate person and IMCAs
- The approved mental capacity professional role
- Life-sustaining treatment or vital acts (section 4b)
- Authorisations, renewals and reviews
- The right to challenge an authorisation in court
Information about support that is being provided ahead of the implementation of LPS can be found on the government website
There is also more information and guidance on the Social Care Institute for Excellence website: Liberty Protection Safeguards (LPS): Latest developments | SCIE