The minutes of the October meeting of the Liberty Protection Safeguards (LPS) National Steering Group confirm that the Department of Health and Social Care (DHSC) will not be implementing the care home manager role when the rest of the LPS framework commences in April 2022.

Whilst DHSC acknowledges that the role of the care home manager in LPS has been contentious, the Department has not clarified how the care home arrangements will be “carved out” of the remainder of the Mental Capacity (Amendment) Act 2019 when it is implemented. It seems likely that the provisions within paragraphs 19 and 20 of the MC(A)A will simply not come into force.

The future role of care home managers

There will still be a significant role for care home managers within the decision making process, given the knowledge they will have of residents, in order to:

• identify persons who are deprived of their liberty;
• ensure that appropriate authorisations are in place for residents;
• facilitate the LPS consultation process; and
• contribute to assessments of capacity, mental disorder, as well as the necessity and proportionality of the proposed arrangements.

It will be for CCGs to act as the responsible body in order to authorise care home residents who are funded via NHS Continuing Healthcare and for the local authorities to act in other circumstances.

New regulations

The minutes also describe six anticipated sets of regulations covering:

1. The Independent Mental Capacity Advocate (IMCA) role. Existing regulations will be amended and IMCAs will have the power to prepare a report in relation to the LPS arrangements.
2. Eligibility criteria and statutory training which are needed to be an Approved Mental Capacity Professional (AMCP), to include carrying out “pre-authorisation reviews”. The regulations will provide for the training of current Best Interests Assessors (BIAs) to become AMCPs under LPS, as well as other health and social professionals who can become AMCPs, and a prohibition from acting if there is a connection with a care home placement.
3. The transition to LPS from DoLS, as well as the framework, whilst the two schemes run alongside each other for the first year to ensure safeguard for those who are under the DOLS framework.
4. The qualifying criteria of those who can carry out assessments and determinations under LPS.
5. A set of consequential regulations will amend other pieces of legislation that will need updating as a result of the MC(A)A2019.
6. How the LPS will be monitored and reported when in in force.

These regulations will be made available in draft at the same time as the draft LPS code of practice in spring 2021.

How Capsticks can help

Capsticks regularly provides training and advice on the current DoLS regime as well as the introduction of the LPS, based on our expertise in the commissioning and delivery of health and social care. We provide advice and representation in Court of Protection proceedings and have fixed fee services for CoPDoL11 applications.  If your organisation needs advice and support with preparation for the LPS implementation, please contact Francis Lyons, Tracey Lucas or Adam Hartrick, to find out how Capsticks can help.