Liberty Protection Safeguards – What happens now?

The Mental Capacity (Amendment) Act 2019 received Royal Assent in May 2019 as a means to replace the current Deprivation of Liberty Safeguards (DoLS) with the Liberty Protection Safeguards (LPS). Consultation for the draft Code of Practice closed in July 2022 and there has been a range of opposition to the new LPS as professionals are becoming increasingly concerned for the safety of the vulnerable person and how the LPS will stand as a comprehensive tool to protect people with diminished capacity.

What will change?

Much like the DoLS, the LPS will facilitate authorisation for care arrangements in England and Wales where a vulnerable person with diminished capacity may be deprived of their liberty and placed into a suitable care facility. There are, however, some new additions to the LPS which is proposed to make the process simpler. They are as follows:

• Whilst the DoLS only applied to vulnerable people aged 18 and over, the LPS will broaden the range to cover 16 and 17 year olds. It is thought that they will have additional protection under the Care Act 2014 and Children Act 1989.
• DoLS only applies in a hospital or care setting. The LPS will apply in any setting, such as sheltered accommodation.
• Under DoLS, the Local Authority will be the body responsible for signing off authorisation. Under LPS, authority may be passed to a Hospital Manager, a Care Home Manager or Clinical Commissioning Group, depending on the setting.
• DoLS are not renewable and will require a fresh application every 12 months. The LPS will be renewable after 12 months for a period of up to 3 years.

The Government understands that there will need to be a transitional period and understands that there will be a need for further training. The Law Society has proposed changes to the LPS system to ensure that the vulnerable person is at the heart of the decision-making process. This would include ensuring that the person’s wishes and feelings are taken into account and that the vulnerable person has a right to challenge the authorisation. Concerns have also been raised in relation to a Care Home Manager obtaining the authority to sign off the LPS where a conflict of interest may rise.

The Government has provided a useful factsheet for LPS. If you would like to read more about the new LPS, please follow the links below:
https://www.lawsociety.org.uk/Topics/Private-client/Whats-changing/Mental-Capacity-Amendment-Act-2019 
https://www.gov.uk/government/publications/liberty-protection-safeguards-factsheets