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Next steps for Liberty Protection Safeguards

The DHSC Liberty Protection Safeguards (LPS) newsletter (5th edition), published on 26 March 2021, confirms key updates on progress to implement LPS. The LPS team is making good progress on a draft of the proposed Code of Practice for LPS which will be produced for public consultation.

An updated version of the MCA Code of Practice will contain detailed information about LPS in dedicated sections. The expectation is that the updated MCA Code of Practice will run to 25 chapters including ‘What is the Overall LPS Process’ and ‘What is the LPS Consultation’ and cover issues such as ‘Interface between LPS and the MHA’ and ‘LPS Challenging Arrangements’. One Code of Practice rather than two will “help to align LPS practices clearly with the overarching  principles of the MCA, minimise repetition and allow for helpful cross referencing between chapters within the Code.” A draft of the Code will be shared with the National LPS Steering Group this month.

The proposed chapters of the MCA Code of Practice, for public consultation, are:

  • What is the MCA 2005? (Includes an introduction to LPS.)
  • What are the statutory principles and how should they be applied?
  • How should people be helped to make their own decisions? (Includes ‘How the Person is Involved’ and ‘Information Rights’.)
  • How does the Act define a person’s capacity to make a decision and how should capacity be assessed?
  • What does the Act mean when it talks about “best interests”?
  • What protection does the Act offer for people providing care or treatment?
  • What is the role of the Court of Protection? (Also covers ‘LPS Court of Protection’.)
  • What does the Act say about Lasting Powers of Attorney?
  • What does the Act say about Deputies?
  • What is the Independent Mental Capacity Advocate (IMCA) Service? (Also covers ‘LPS IMCAs’.)
  • What does the Act say about advance decisions to refuse treatment?
  • What is a Deprivation of Liberty (DoL)?
  • What is the Overall LPS Process? (Also covers ‘If I think there is a DoL’.)
  • What is the role of the Responsible Body? (Also covers ‘Correct Responsible Body, Responsible Body Oversight of LPS’ and ‘Cross Border Working’.)
  • What is the role of the Appropriate Person?
  • What are the Assessments and Determinations for LPS?
  • What is the LPS Consultation?
  • What is the role of the Approved Mental Capacity Professionals (AMCP)?
  • What is Section 4B, and how is it applied?
  • How is the LPS system monitored and reported on?
  • How does the Act apply to children and young people? (Also covers ‘LPS 16-17 Year Olds’.)
  • What is the relationship between the Mental Capacity Act and the Mental Health Act 1983? (Also covers ‘Interface between LPS and the MHA’.)
  • What are the best ways to settle disagreements and disputes about issues covered in the Act? (Also covers ‘LPS Challenging Arrangements’.)
  • What rules govern access to information about a person who lacks the relevant capacity?
  • How does the Act affect research projects involving a person who lacks the relevant capacity?

An update has also been provided in respect of the Health and Social Care Bill. The White Paper: ‘Integration and Innovation: working together to improve health and social care for all’ was published on 11 February. The Government has set out its intention to establish statutory Integrated Care Systems (ICSs) and it is anticipated that the Responsible Body function under LPS will transfer to ICSs as they take over core functions of Clinical Commissioning Groups.

The Government is aiming for full implementation of LPS by April 2022 and we anticipate provisions covering new roles and training to come into force ahead of that date.


Disclaimer

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.

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