Last reviewed 28 March 2022
The Government has launched its long-awaited consultation on proposed changes to the Mental Capacity Act (MCA) 2005 Code of Practice (the Code), which includes guidance on the implementation of the new Liberty Protection Safeguards (LPS) system. The new draft Code is a lengthy document and it is worth highlighting the areas with which social care practitioners need to familiarise themselves. Christine Grey investigates.
This, the first revision of the Code since its publication in 2007, reflects recent changes in legislation, case law, organisations and good practice that have developed over time, as well as incorporating new guidance on the LPS system.
The consulation, which closes on 7 July, also sets out the LPS regulations that underpin the system, which may change but are indicative of the policy intention to ensure some of the most vulnerable people in society receive the best possible care, as safely as possible while they are in hospital or living in a care home, by depriving them of their liberty lawfully.
When will the LPS be implemented?
The LPS were introduced in the Mental Capacity (Amendment) Act 2019 (MC(A)A) and are due to replace the Deprivation of Liberty Safeguards (DoLS) and the role of the Court of Protection. However, after many delays, a date is still to be set for their implementation.
Originally due to be implemented in October 2020, then delayed to a target of April 2022 due to the pandemic, implementation was put off again at the end of last year, with no new date specified. A date will now be fixed following this consultation to ensure that there is adequate time for implementation.
Will new legislation be needed?
There are also six sets of draft regulations, set out in Section 4 of the consultation document, which will need to be laid before Parliament. They contain mandatory requirements around:
Approved Mental Capacity Professional (AMCP) training
criteria for initial and continuing AMCP approval
which professionals can carry out each assessment and determination
appointing Independent Mental Capacity Advocates (IMCAs)
IMCA functions under the LPS
duties on regulators to monitor and report on the operation of LPS
commencements of provisions in the Mental Capacity (Amendment) Act 2019 (MC(A)A) that implement the LPS.
Which parts of the draft Code cover the new LPS?
The draft Code is one overarching document that includes existing and updated guidance from the current Code and new chapters that contain LPS guidance only. The new ones are chapters 13 to 20 in the draft.
Which chapters are relevant to practitioners and people involved in a person’s care?
The draft Code is designed to provide all the key guidance for practitioners and staff working in the LPS system, as well as informal carers and the person themselves.
The Code says the chapters of particular importance for adult care practitioners are two existing chapters that have been updated with LPS information:
Chapter 3: How Should People be Helped to Make their Own Decisions?
Chapter 10: What is the Independent Medical Capacity Advocate (IMCA) Service?
And the new chapters:
Chapter 13: What is the Overall LPS Process?
Chapter 16: What are the Assessments and Determinations for the LPS?
Chapter 17: What is the LPS Consultation?
Chapter 18: What is the Role of the Approved Mental Capacity Professional (AMPC)?
The person and their family and friends need to understand Chapters 3; 15: What is the Role of the Appropriate Person (AP); and 17. New Chapters 13 and 21 are relevant for 16- and 17-year-olds, their parents and carers; and other chapters are of importance to Responsible Bodies.
The new Chapter 12 explains what is meant by a deprivation of liberty. It clarifies how the 2014 Cheshire West domestic case judgment should be interpreted; and when tests considered together may indicate whether somebody is being deprived of liberty.
Updates to existing chapters which include relevant LPS guidance
Chapter 3 explains how the MCA ensures people are supported to make their own decisions as far as possible. It has been updated to highlight core principles set out in the MCA that must be followed throughout the LPS process. Wording has been strengthened to put more focus on supported decision making and empowering people to make their own decisions, and to highlight the risk of coercion or undue influence from someone who is supporting a person to make a decision, or to express their views, as part of the process of best interests decision making.
Chapter 10 provides information on the IMCA’s role under the new LPS. This includes updated information on the interface between IMCAs and other types of advocacy such as the statutory duty to instruct an advocate under other legislation such as the Care Act 2014. Where there is no AP able to represent and support the person, the duty to appoint an IMCA applies unless such an appointment would not be in the person’s best interests. The focus of the consultation document is specifically on the role of IMCA services in the context of the LPS.
New chapters which contain relevant LPS guidance
The new Chapter 13 gives practical guidance on the various stages in the LPS process, the different organisations and individuals that may be involved, and how the LPS integrates with other health and care assessments and planning.
It describes how the LPS should work to avoid repeat assessments and unnecessary duplications and deprivations of liberty, as LPS assessments and reviews can be carried out alongside the person’s main health or care assessment, planning and review processes.
Decisions about the detail of LPS authorisations, reviews and renewals are for the Responsible Body to make but practical elements of the process that need to be carried out are also outlined.
Here, the Government confirms that it will not, for now, implement its original proposals about the care home manager's role in preparing an authorisation, including commissioning assessments for someone in their care home. However, staff who care for the person will, alongside family and friends, still play a vital role throughout various stages of the LPS process, such as being consulted when an authorisation is being considered.
This chapter also highlights a “Responsibility to Refer”, at paragraph 13.17; that all health and social care professionals, staff and care providers have “a responsibility to be aware of the potential for a deprivation of liberty to arise and take appropriate action, including by making an LPS referral”.
Also, the new LPS role of AMPC is mentioned, and how the Responsible Body must arrange for the “Pre-authorisation Review” to provide an independent check on whether three authorisation conditions have been met. It sets out in paragraph 13.49 the circumstances where this review must be carried out by an AMPC.
Where changes of setting can be reasonably foreseen, there is an element of “portability” in paragraph 13.77, as this information can be included in the authorisation record to avoid the need to give new authorisations each time the person moves.
Assessments and determinations for the LPS
A new Chapter 16 explains how, under the LPS, a Responsible Body may authorise arrangements giving rise to a deprivation of liberty if three assessments are completed. These are:
a capacity assessment and determination on whether the person has the relevant mental capacity to consent to the arrangements
a medical assessment and determination on whether the person has a mental disorder
an assessment and determination on whether the arrangements are necessary to prevent harm to the person and proportionate in relation to the likelihood and seriousness of harm to the person.
The draft regulations state that the “capacity” assessment and the “necessary and proportionate" assessment must be carried out by a social worker, doctor, nurse, occupational therapist, psychologist or speech and language therapist. The “medical” assessment must be carried out by a doctor or clinical psychologist. From referral to a decision on authorisation, the assessment process should involve no fewer than two professionals, for example, a social worker and doctor, carrying out the three assessments.
Also, in order to streamline the process and reduce a potential “assessment burden” on the person when suitable assessments already exist, “previous” and “equivalent” assessments introduced in the MC(A)A can be used in the LPS process if it is reasonable to do so; “previous" assessments are ones that were carried out for an earlier LPS authorisation.
Where the person already has a previous or equivalent “capacity” or “medical” assessment, they may be used for the purposes of the LPS “if it is reasonable to rely on it”. These, however, can’t be used for a “necessary and proportionate” assessment and determination.
The Consultation Duty
Chapter 17 explains consultation as part of the LPS process. Decision makers should consult the person and certain others, as far as is practicable and appropriate, to ascertain the person’s wishes and feelings as they relate to the person’s care and treatment arrangements.
The Responsible Body must carry out the consultation during the assessment process of an initial authorisation, when a variation for an authorisation is being considered, and when an authorisation is being considered at the renewal stage. AMCPs will also consult with the person and certain others when they carry out the “Pre-authorisation Review”.
The Approved Mental Capacity Professional (AMCP) role
Chapter 18 explains the role of the AMCP, the circumstances in which a case must be referred to an AMCP, and the responsibilities of local authorities in approving AMCPs and ensuring sufficient AMCP availability for their area.
AMCPs provide an additional layer of scrutiny and enhanced oversight of the LPS process for people who most need it. Their primary role is to determine if authorisation conditions are met, but also includes safeguarding, drafting the authorisation record and putting conditions on the authorisation. In certain circumstances, an AMCP will carry out the “Pre-authorisation Review”, and they may carry out a review of the arrangements.
The draft regulations state an AMCP should be a social worker, nurse, occupational therapist, psychologist or speech and language therapist; must have two years’ post-registration experience and have undertaken specialist training, as is the case with current best interests assessors under DoLS.
Is the Government providing implementation support?
The Government’s LPS implementation support for relevant sectors is summarised in Section 5 of the consultation, and comprise:
Impact assessment — Government’s assessment of the financial impact of LPS, including the Code and regulations, as proposed for consultation
Workforce and training strategy — the learning, development and training on offer; and what different organisations and sectors can do now, to begin preparing for LPS
LPS training framework — makes recommendations about subject areas that LPS training should cover
LPS national minimum data set — this will be used to standardise the collection and submission of the proposed statutory notification data that will be sent to the LPS monitoring bodies by LPS Responsible Bodies under the draft LPS regulations.