liberty protection safeguards lps - proceduresonline.comhouse of lords post-legislative scrutiny...

Liberty Protection Safeguards

LPS

Annie Ho

• southwark.gov.uk • Page •

Why are we here?

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• substantial increases in numbers of applications in settings

to which DOLS applies – care homes and hospitals only –

since Cheshire West judgement 2014

• many people in settings to which DOLS do not apply who

need authorisation of their circumstances, currently only

achievable by application to Court of Protection

• Law Commission review covered more broadly than simply

DOLS

20/02/2020


Where are we with MCA?

‘For many who are expected to comply with the Act it appears

to be an optional add-on, far from being central to their

working lives… the prevailing cultures of paternalism (in

health) and risk-aversion (in social care) have prevented the

Act from becoming widely known or embedded. The

empowering ethos has not been delivered. The rights

conferred by the Act have not been widely realised. The duties

imposed by the Act are not widely followed.’

House of Lords post-legislative scrutiny report MCA

March 2014

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Mental Capacity (Amendment) Act 2019

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Implementation date 1 October 2020

Aims

• create a new simplified legal framework

• deliver improved outcomes for persons deprived of their liberty and

their family / unpaid carers

• provide a clear authorisation process capable of operating effectively in

all settings

• ensure MCA works as intended – placing the person at the heart of

decision-making and is compliant with Article 8 ECHR

• ensure compliance with the law, improve care and treatment for people

lacking capacity and provide a system of authorisation and robust

safeguards in a cost-effective manner


Key changes 1) Reduced number of assessments – capacity assessment, medical assessment,

and ‘necessary and proportionate’ assessment; assessment process to be embedded into existing care planning and existing valid assessments to be used

2) Greater involvement for families – explicit duty to consult with those interested in the person’s welfare and an opportunity for family member to support and represent the person through the process as an ‘Appropriate Person’; AP can request for support from an IMCA

3) Role for care home managers – may be asked to coordinate assessments and consultation and prepare paperwork for pre-authorisation review and renewal

4) Targeted approach – Approved Mental Capacity Professional (AMCP) instructed for complex cases, and those where an objection has been raised or a person lives in an independent hospital; a more in-depth view taken, including meeting with person and consultation with relevant persons

5) Extending scheme to domestic settings – allow deprivation of liberty in these settings to be approved without an authorisation from the Court of Protection

6) 16-17 year olds included – same access to safeguards afforded to those 18 and over

Can be in any setting and multiple settings; can be used to authorise day centre and transport arrangements (not tied to accommodation or residence)

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Interim & emergency deprivation of liberty

• Replaces urgent authorisations.

• The decision-maker must reasonably believe that the person

lacks capacity to consent to the steps being taken, and the

deprivation of liberty must be necessary to:

provide the person with life-sustaining treatment; or

do any vital act (necessary to prevent a serious

deterioration in the person’s condition).

• It is not reasonably practical to make a referral for a LPS

authorisation, a Mental Health Act 1983 assessment or a

court determination.

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Interface with the MHA (1983)

• To a large degree, the LPS seek to maintain the existing interface

between DOLS and the MHA.

• LPS cannot be used to authorise arrangements for the assessment or

medical treatment of mental disorder in hospital where:

the person is detained in hospital under the MHA, or

where an application for detention in hospital under the MHA could

be made and the person objects.

• The LPS can be used where:

an application for detention in hospital under the MHA could be

made and the person does not object, or

the person is subject to a community MHA power (such as

guardianship or a CTO).

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Assessments

• Responsible Body: NHS Trust, CCG, Local Authority, Health Board (Wales)

• statutory responsibility to organise and authorise LPS assessments

• AMCP (Approved Mental Capacity Professional) requested if P is objecting

Pre-Authorisation

Review

• RB decides who conducts pre-authorisation review

• carried out by person not directly involved in day to day care or by an AMCP

Authorisation

• RB is satisfied that duty to apply for Appropriate Person or IMCA has been complied with

• RB authorises LPS if it is satisfied the criteria are met

• immediate and up to 28 days or I year, extend to 3 years


Code of Practice (LPS merged with MCA)

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Regulations

Criteria of who can complete assessments and determinations for the

purposes of LPS authorisation

• have an applied knowledge of MCA and Code of Practice

• able to keep good records and provide clear and reasoned reports

• have two years post registration experience and have the skills

necessary to obtain, evaluate and analyse complex evidence and

differing views and to weigh them appropriately

• doctors, psychologists, occupational therapists, first tier nurses, speech

and language therapists and social workers will be able to complete the

capacity assessment and the necessary and proportionate assessment

• doctors and psychologists will be able to complete the medical

assessment for mental disorder

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Approved Mental Capacity Professional

• build on role of existing BIAs

• a regulation power allows the government to prescribe:

– the criteria for approval as an AMCP (qualifications, training or

experience); and

– bodies (such as Social Work England) to approve training

• only registered professionals will be able to fulfil the role of AMCP

• those who can currently become BIA can also become AMCP

• Social Work England will be responsible for approving training courses for

AMCP

• envisage there will be a different level of training required between those

who are currently BIA and others who want to be AMCP

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Transitional arrangements

• no new DOLS authorisations can be granted after the

implementation date

• a standard DOLS authorisation which is already in force

prior to implementation of LPS will remain in place until it

expires

• if there has been a request for a standard DOLS

authorisation and it has yet to be granted ahead of

implementation, the request can only be authorised under LPS

• an urgent authorisation which is already in force prior to the

implementation of LPS will remain in place until it expires

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Reporting and monitoring

• Ofsted and CQC will be responsible for monitoring and

reporting on LPS

• Ofsted and CQC will be required to report on the scheme

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Key implementation issues for LA

• LA must approve all AMCPs for all RBs in their area

• responsibility of LA to ensure there are sufficient numbers of AMCPs in

the area

• responsibility of LA to ensure there are enough IMCAs for all RBs in their

area to instruct

• publish information about LPS system

• identify people being or likely to be deprived of liberty

• work with other Responsible Bodies to agree portable authorisations

• consider delegation to care homes

• consider position of self-funders in care homes

• consider transitional arrangements for 1 year from Oct 2020

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Key implementation issues for LA

• LPS assessments should be part of mainstream assessment and care

planning for the person

consider how much can be integrated into care planning

• determine who will do relevant tasks

mental capacity assessment and N&P assessment

medical assessment

consider whether arrangements are mental health arrangements

pre-authorisation review

• determine who will be our AMCPs

• plan preparatory and ongoing training

• ensure care homes and other relevant providers have training

• consider cost implications – staff training and workload, medical

assessments, IMCA, care homes and other providers in coordinating

process

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LPS for 16 and 17 year olds

• assessments of 16 and 17 year olds will need to take account of

Education, Health and Care Plan (EHCP) assessments and Children Act

assessments

• issue of parental responsibility and consent (Re D)

• staff assessing and supporting young people through LPS process need

to know about their rights under other legislation, as set out in the Code

of Practice, but with specific focus on Children Act 1989 and Children

and Families Act 2014

• must not forget the need to listen to and take account of voice of the

young person in this work

• training focus for children’s services staff

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LPS for 16 and 17 year olds

• consider issues around settings for LPS – care homes, residential

special schools, hospitals, domestic settings

• Court of Protection and SEND Tribunal

• important to synchronise reviews to work holistically and in a child-

centred way

• be prepared for transition to adulthood

MCA starts at 16 – no formal LPS assessment before then

• staff should be aware and planning for the 16th birthday where deprivation

of liberty applies

• for children with EHCPs good practice to start thinking about this from age

14 (year 9 reviews)

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South East London CCG

Three key areas of work:

1. undertaking a CCG Scoping Review

2. Governance and Quality Systems at SEL CCG level

3. Local Impact Assessment across CCGs, LAs and Hospital Trusts

Alliance between CCGs and Hospital Trusts

CCG – Southwark, Greenwich, Lewisham, Lambeth, Bexley, Bromley

NHS Trusts

Lewisham and Greenwich - University Hospital Lewisham, Queen Elizabeth

South London and Maudsley – Maudsley Hospital, Bethlem Royal Hospital,

Ladywell Unit, Lewisham Hospital

King’s – Kings’ College Hospital, Princess Royal University Hospital

Guys’ and St Thomas’ – Guys’ Hospital, St Thomas’ Hosiptal

Oxleas – Oxleas House

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DHSC planned milestones

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Positive message of LPS

The success of LPS is the foundation of good care

planning in social and health care.

The key benefit of this legislative change should be improved

outcomes for vulnerable people resulting from Mental

Capacity Act and Care Act compliant assessments and

decisions throughout their social and health care journey,

including lawful authorisations of deprivation of liberty

across all care settings.

LPS provides social and health care the opportunity to review

our assessments and outcomes for vulnerable people.

Engagement and partnership work with all internal and external

stakeholders is critical to the success of LPS.

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Essential link between MCA and LPS

• The MCA comes first.

• How well do your staff know the MCA including DOLS?

• How well do your staff apply the MCA in practice in your

everyday work with service users?

• How MCA compliant are your care plans and risk

assessments for service users, including identification of

restrictions and deprivation of liberty?

• What can you do to improve your knowledge and

application in practice?

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Questions and discussion

• Any questions?

• What are your next steps?

awareness raising

communication with staff, users and providers

practice implications

training

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Scoping and preparation

• What do you consider to be the level in your service of the

understanding of deprivation of liberty and the application of

the MCA in practice including all aspects of care planning and

risk assessment?

• What are the potential numbers of cases in your service

where deprivation is occurring which are not within the cope of

DOLS or have not been prioritised for application to the Court?

• What kind of settings / provider services do we need to take

into account under LPS?

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To help us scope the potential extent of deprivation of liberty in

your service between now and October 2020, we recommend

the actions below.

• include the assessment and determination of the nature and

degree of restriction and deprivation in all placement reviews

• specify details of settings / provider services, highlight where

CCG is wholly or partly funding the placement

• What is your view about care home providers’ potential role in

coordinating assessments and consultation and preparing

paperwork for pre-authorisation review and renewal?

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• identify cases where the person is unbefriended, there is no

one in an unpaid capacity who is appropriate and willing to

represent the person, i.e. an advocate would be required

• identify cases where the person is expressing objection to the

care arrangements

• identify cases where there is disagreement amongst

professionals and families / carers

• total number and individual details of DOLS signatories in

your service

• total number and individual details of BIAs in your service

• BIAs who are not currently undertaking DOLS assessments

and/or have not kept up with their registration via annual

refresher training

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