A proposed new raft of legislation, which would introduce the Liberty Protection Safeguards (LPS) to replace DoLS, has been approved by the House of Lords, but not without a lot of changes to address concerns that the original version provided insufficient safeguards for individuals (Legal Persons) who are deprived of their liberty under the script they call Mental Health.
The committee stage of the bill in the House of Commons will start on 15 January 2019 and must be concluded by 24 January.
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The Liberty Protection Safeguards, like DoLS, would provide a system for authorising care arrangements in England and Wales that require a person to be deprived of their liberty, in line with the UK’s obligations under article 5 of the European Convention on Human Rights.
It would apply in cases where the responsible body was satisfied that a person lacked capacity to consent to arrangements and had a mental disorder, and that the arrangements were necessary to prevent harm to the person and proportionate to the seriousness and likelihood of that harm.
This would be based on separate assessments of capacity, mental health and necessity and proportionality, and every case would be reviewed prior to authorisation (“a pre-authorisation review”) to check that the three conditions had been met. Such a review would always be carried out by someone independent of the person’s care or treatment, but where it was believed the person was objecting to their arrangements, a specially trained and qualified practitioner, known as an approved mental capacity professional (AMCP), would carry it out. The government intends to extend the role of the AMCP, including to cases in settings run by independent hospitals.
The authorisation process would require consultation with the person who faced detention (known as the “cared-for person”), any carer, attorney or deputy and anyone with an interest in the cared-for person’s welfare. The cared-for person would also be entitled to the support of an appropriate person – an informal advocate who would usually be a family member or friend – or an independent mental capacity advocate (IMCA).
The LPS would differ from the DoLS in the following ways :
It would apply in any setting in which a person may be deprived of their liberty, not just care homes or hospitals, as with DoLS.
The “responsible body”, which would sign off the authorisation, differs by setting, unlike under DoLS in England, where local authorities take on the role in all cases; by contrast, under LPS, local authorities would be responsible for cases in social care settings or people’s homes, hospital managers for cases in their own settings and English clinical commissioning groups or Welsh local health boards for continuing healthcare cases.
Responsible local authorities may give care home managers responsibility for overseeing cases in their settings, which would involve commissioning assessments, arranging consultation and reporting back to the authority on whether the authorisation conditions had been met – though sign-off would remain the authority’s responsibility. Under DoLS, all care home cases fall under the responsibility of the local authority that is the supervisory body and are managed by best interests assessors (BIAs) on their behalf.
The LPS would apply to anyone aged 16 or over, not 18, as with DoLS.
While the tests for an authorisation under the LPS and DoLS are similar, it would no longer be required that the arrangements are in the person’s best interests under the LPS.
Assessments would no longer have to be carried out by specially trained and qualified assessors – as with best interests and mental health assessors under DoLS – though assessors would need to have appropriate experience and knowledge. The only role that required a distinct qualification and particular training under the LPS would be that of the AMCP.
While LPS authorisations, like DoLS cases, would have an initial limit of 12 months, they would be renewable, unlike with DoLS, where a fresh authorisation is required after one expires. While the first renewal would have a limit of 12 months, subsequent renewals could be for up to three years.
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