Last reviewed 23 September 2021
A twelve-week public consultation on a draft Liberty Protection Safeguards (LPS) Code of Practice (CoP) is imminent. The response to this will be the next step towards finalising detail on how the health and social care sectors will implement a new LPS scheme, which is set to replace the existing Deprivation of Liberty Safeguards (DoLS) from April next year. Christine Grey looks at the next steps and the implications for care services.
A review of the existing Mental Capacity Act 2005 (MCA) CoP is also underway. Following this, the LPS CoP, alongside a new, single Mental Capacity Act and regulations, will be laid before Parliament “well in advance of the target implementation date”, according to an announcement from Care Minister Helen Whately, who also confirmed that some provisions covering new roles and training will come into force prior to the implementation date.
The Social Care Institute for Excellence (SCIE) and Skills for Care have responsibility for supporting the LPS training of the social care sector and have said that training the workforce will have to wait until the LPS CoP is published.
This leaves very little time. However, when it is implemented in April 2022, the LPS scheme will run alongside that of the DoLS for a year to ease the transition for existing cases.
In the meantime, the Department of Health and Social Care (DHSC) is publishing a series of LPS Factsheets. So far these provide more clarity on areas such Responsible Bodies, criteria for authorisation, renewals and reviews, and the Appropriate Person, Independent Mental Capacity Advocate (IMCA) and Approved Mental Capacity Professional (AMCP) roles.
The DoLS are in force to protect people who cannot consent to their care arrangements in a care home or hospital if those arrangements deprive them of their liberty. They were designed with a relatively small number of cases in mind and are considered to be too complicated. The aim of the proposed LPS is the same but it is being designed to make the system run more smoothly and keep up with current and future demand.
The Law Commission’s 2017 report included a draft bill that provided the basis for discussions in Parliament. Elements of it were enacted as the Mental Capacity (Amendment) Act 2019. The regulations to implement the Act were originally planned to take effect from October 2020, were delayed until April 2021, and then the Covid-19 pandemic meant the implementation date was put back to April 2022. Prior to this date the DoLS still apply in England and Wales, as do the principles of the MCA.
What documents are due for consultation?
A review of the existing MCA Code of Practice, which is the statutory guidance for how the law should work in practice, aims to ensure that it is still right, helpful, accurate, reflects current case law and best practice, and is fit for purpose. There will be a consultation on this update alongside the new LPS guidance.
The regulations being drawn up will cover topics such as the training required for AMCPs, "conversion" arrangements for existing Best Interests Assessors (BIAs), transitional arrangements, and regulation of the LPS scheme.
Skills for Care is part of a national group working to develop the LPS CoP, which will explain how the LPS will work, offer examples of best practice and will contain detail on issues such as which types of referred cases should be accepted by an AMCP, and the renewal periods for authorisation. The LPS CoP will also explain the implications of the changes for the workforce.
Concurrently, Skills for Care is developing a programme of support that will include learning resources and workforce guidance for adult social care employers to help with the implementation of the LPS CoP when it is published.
When can we start training the workforce?
The SCIE said finalisation of the guidance and regulations will provide clarity around outstanding questions on “how LPS will work in practice and the training and implementation required”. Training needs to be linked to the LPS CoP, which means that if any courses are carried out before the CoP has been published, it may not meet required standards.
Helen Whately’s statement acknowledged that the sector will need time for training and preparation for the new system to ensure successful implementation. She said: “I am considering a period of approximately six months for this.”
The danger is that time between training and implementation will be squeezed. So any advance preparations for the LPS could include identifying staff who will need to understand the LPS scheme, and considering what training your organisation will need. The SCIE has also suggested:
familiarising the workforce with the impending changes
starting to draw up a workforce development plan
running workshops to explore implications of LPS in the setting for client group/type of work
ensuring staff are confident and competent in practice under the MCA and its relationship with human rights
appointing MCA champions to ensure key people develop expertise and can support other staff
setting up peer-support networks within and between agencies for problem solving, information, advice and guidance.
What training will be needed?
The Government’s January 2021 Impact Assessment of the Mental Capacity (Amendment) Act 2019 (IA) said that the training for LPS would be split into “full training” and “awareness raising”.
All health and care staff will need awareness training in the new system and this is expected to be built into existing refresher training for staff.
The document said 100% of adult social workers are assumed to require a full, two-hours’ training, and 20% of doctors, children’s social workers and other social workers estimated to need the full training, with the remainder receiving awareness raising.
An LPS Training Framework is being produced and includes learning outcomes for IMCAs. This will be published for comment during the public consultation period.
BIAs may wish to apply to become AMCPs. They would have to complete a conversion course and apply for posts, which will probably be in all Responsible Bodies, and get approval by the LA.
It is presumed that 90% of all AMCPs will be recruited from existing BIAs, so only 10% of AMCPs will require full training. The AMCP refresher training, which includes an estimate for a conversion course, is anticipated to run for eight hours.
What are the implications for care home managers?
The LPS “creates a specific role for care home managers in adult settings which formalises functions they already perform” when delivering care more widely, according to the latest IA. These include preparing the statement provided to the Responsible Body, completing consultation about the person’s arrangements and reviewing the person’s condition and circumstances, where asked to by the LA.
The aspect of the amended Act that originally allowed for care home managers to lead on assessments of capacity and the judgment of necessity and proportionality, and pass findings to the LA as the Responsible Body, generated some negative comment. This will now not be implemented when the system comes into effect. It will, instead, be “kept under review”.
The IA confirmed care home managers will “not be responsible for new substantive functions such as completing assessments” and added that the Government is committed to “work with the care sector to minimise administrative burdens and to ensure preparedness for this change”.
It confirmed that the estimate of time to familiarise each care home manager with the new policy has been increased to “0.5 days (low estimate), 1 day (best estimate), or 1.5 days (high estimate)”.
What support is there for implementation?
The Government published a leaflet in June on LPS: Support for National Training and Readiness, which describes the English implementation support programmes.
Led by the SCIE and Skills for Care in partnership with the DHSC, the Social Care Providers Implementation Support Programme will:
establish how social care is planning for LPS implementation and what national support it needs
develop and disseminate information about LPS for social care providers’ implementation planning; this will include exemplar guidance, resources and training for those working in social care.
BIAs in the current system who wish to convert to AMCPs will undergo training, to be delivered by local authorities (LAs). The DHSC’s Local Government Implementation Support Programme includes the Local Government Association (LGA) and ADASS, and will develop exemplar training products for LAs for these conversions. It will also:
appoint “regional implementation champions”
provide LAs with targeted planning and activities support
work through established regional structures to “develop and disseminate key information about LPS” and inform LA planning for implementation.
The Government said it is currently working with the NHS in England, including Health Education England (HEE), on plans for a third Implementation Support Programme for the health sector.
HEE has also been commissioned by the DHSC to include registered care professionals such as nurses in the Framework 15 strategic workforce plan for the first time which, up to now, has covered only health staff.
More information about implementation planning, workforce training and readiness will be included in the Government’s public consultation on the LPS.
Implementation of Liberty Protection Safeguards — Written statements — Written questions, Answers and Statements, UK Parliament, Helen Whatley
Mental Capacity and Deprivation of Liberty, Law Commission, 2017
Framework 15, Health Education England (hee.nhs.uk)