The Mental Capacity (Amendment) Act 2019 (‘the Act’) became law on 16 May 2019. It replaces the current Deprivation of Liberty Safeguards (‘DoLS’) regime with the Liberty Protection Safeguards (‘LPS’).

Below are some of the key changes and there is already concern that these changes will increase the burden on care home registered managers. Owners and managers of care homes will have to await the Code of Practice to see how the new powers will work in practice, and what the expectations will be on care home managers.

Key changes

The key changes are as follows:

  • Responsible bodies: The responsible body is the agency that authorises the arrangements which give rise to a deprivation of liberty (replacing the supervisory body under DoLS). The responsible body will be:
    • Hospital managers for arrangements in an NHS hospital
    • CCG or Local Health Board where a person is eligible for NHS continuing healthcare;
    • A local authority in all other cases.
  • Role of care homes: If the individual is residing in a care home then the responsible body can delegate the assessment and consultation process to the care home manager who will have to prepare a statement. 
  • Conditions: The responsible body can authorise arrangements that amount to a deprivation of liberty if: (i) the individual lacks capacity; (ii) the individual has a mental disorder; and (iii) the arrangements are necessary and proportionate. Unlike DoLS, there is no requirement to consider best interests. 
  • Flexibility: The LPS can cover more than one environment and travel with the individual between different settings. 
  • Reviews and renewals: A programme of regular reviews must be recorded in the authorisation record and LPS authorisations can be renewed, in the first instance for 1 year, and thereafter for periods of up to 3 years. Age: Whereas DoLS apply to those aged 18 and over, the LPS applies to those aged 16 and over.

Department of Health and Social Care update

In an update released on 10 June 2019, The Department of Health and Social Care (‘DHS’) has confirmed that the intention is for the Liberty Protection Safeguards (‘LPS’) to come into force on 1 October 2020. In order to meet this deadline, the DHS is:

  1. Developing draft chapters for the Code of Practice. There will be a full public consultation (likely to commence by Autumn 2019) prior to the final draft being laid before Parliament in spring 2020.
  2. Drafting the statutory instruments under the Act and will engage with the sector on the development of the regulations. It is expected that these will also be laid before Parliament in spring 2020.
  3. Working with delivery partners and stakeholders to prepare for implementation of the LPS. It will shortly be publishing some initial materials which can be used by the sector as a starting point in the preparations for the new system.

The update also confirms that the DHS expects that those who have an authorisation in place under DoLS when the LPS system comes into force will remain under DoLS until that authorisation expires. In practice this will mean that the LPS will run alongside the DoLS scheme for the first year that it is in force. The DHS has not yet addressed the issue of how it will deal with applications which have been submitted to supervisory bodies but not yet determined.

Next steps

We await the draft Code of Practice when it is published for consultation, as this should clarify how the LPS will work in practice. It will also be interesting to see what initial materials the DHS provides to help care home owners and managers to start preparing for the implementation of the LPS.

Watch this space for further updates and please get in touch with Siwan Griffiths or Emma Pollard if you have questions. Capsticks will be offering training courses to our care home clients on the changes and what they mean in practice.