LPS Update – Care Home Manager role on hold, full implementation of LPS by April 2022
As many providers will recall, Minister for Care, Helen Whately, confirmed in July that it would not be possible to implement the Liberty Protection Safeguards (LPS) by October 2020 and set a new target date for ‘full implementation’ by April 2022. Some provisions, covering new roles and training, will of course come into force ahead of that date. Minutes of the recent steering group meeting, published today, provide an update.
Six sets of Regulations
The LPS National Steering Group met in October for the first time since February and confirmed that there will be six sets of regulations which set out how the LPS will operate in England. Updates were provided by the Department of Health and Social Care in relation to five of these as follows:
- The Independent Mental Capacity Advocate (IMCA) role under LPS will be set out in regulations.
- Eligibility criteria and statutory training needed to be an Approved Mental Capacity Professional (AMCP) under LPS will be set out in regulations.
- There will be a conversion course for Best Interests Assessors (BIAs) under the Deprivation of Liberty Safeguards (DoLS) to become AMCPs under LPS.
- Practicing Social workers, nurses; Speech and Language Therapists, psychologists and occupational therapists will be eligible for the AMCP role.
- A definition of a prescribed connection to a care home will be set out. Individuals who meet that definition will not be able to act as an AMCP in certain cases.
- Transitional regulations will set out the legal framework for LPS and DoLS to run alongside each other for the first year of implementation. This will ensure that people who are subject to a DoLS authorisation or a Court Order, which runs into the first year of LPS implementation, are still able to access the necessary safeguards until their authorisation or Order ends.
- Assessments regulations will set out who is able to carry out assessments and determinations under LPS.
- Consequential regulations will amend other pieces of legislation requiring an update.
Role of Care Home Manager currently on hold
It was acknowledged that the role of the Care Home Manager as set out within the Mental Capacity (Amendment) Act 2019 was contentious and that the Government had carefully considered representations from across the sector.
Many were concerned about the increased workload and responsibility this would bring for care home managers and highlighted there may be conflict of interest scenarios in circumstances where managers would be hesitant to flag issues that would lead to increased scrutiny. The training required to enable managers to complete the role was also thought to have been significantly underestimated.
The minutes confirm the Government has decided not to implement this aspect of the MC(A)A in England, for now. The relevant provisions will therefore not be commenced in April 2022. The Steering Group noted that the aim to ensure those who know the person best lead the process remains valid, however now was not the right time to introduce this particular aspect of the regime.
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.