Last reviewed 1 December 2020
Information about the Liberty Protection Safeguards (LPS) system, which will be replacing the Deprivation of Liberty Safeguards (DoLS), has been published by the Department of Health and Social Care (DHSC).
The LPS were introduced in the Mental Capacity (Amendment) Act 2019 and will replace the DoLS system when they come into force in April 2022. The LPS will deliver improved outcomes for people who are or who need to be deprived of their liberty and are designed to put the rights and wishes of those people at the centre of all decision-making on deprivation of liberty.
They will provide protection for people aged 16 and above who are or who need to be deprived of their liberty in order to enable their care or treatment and lack the mental capacity to consent to their arrangements. People who might have such an authorisation include those with dementia, autism and learning disabilities who lack the relevant capacity.
Key changes introduced by the LPS include:
three assessments will form the basis of the authorisation of LPS
greater involvement for families
a targeted approach
extending the scheme to and 16- and 17-year-olds
extending the scheme to domestic settings
a new role for clinical commissioning groups (CCGs), NHS trusts and local health boards as Responsible Bodies.
Domestic settings include the person’s own home and family home, shared lives and supported living, to ensure that all those who need to be deprived of their liberty will be protected under the LPS regardless of where they live, without the need to go to court.
Deprivations of liberty will need to be authorised in advance by the "responsible body". For care homes and supported living schemes, including for self-funders, and private hospitals the responsible body will be the local authority.
For the responsible body to authorise any deprivation of liberty, it needs to be clear that the person lacks the capacity to consent to the care arrangements; has a mental disorder; and the arrangements are necessary to prevent harm to the cared-for person, and proportionate to the likelihood and seriousness of that harm.
To determine this the responsible body must consult with the person and others to understand what the person’s wishes and feelings about the arrangements are.
Where it is clear, or reasonably suspected, that the person objects to the care arrangements a more thorough review of the case must be carried out by an Approved Mental Capacity Professional (AMCP).
Once a deprivation is authorised, safeguards include regular reviews by the responsible body.
As under DoLS, a deprivation can be for a maximum of one year initially. LPS say this can be renewed initially for one year but subsequent to that for up to three years. Also, as under DoLS, the Court of Protection will oversee any disputes or appeals.
The new Act broadens the scope to treat people and deprive them of their liberty in a medical emergency without gaining prior authorisation.
The target date for implementation is 1 April 2022. Prior to this, following a 12-week consultation planned for 2021, both a single Mental Capacity Act and LPS Code of Practice, and Regulations, will be laid before Parliament and subsequently published.
The factsheet about the LPS is at: https://www.gov.uk/government/publications/liberty-protection-safeguards-factsheets.