By Rachel Griffiths, Human Rights and Mental Capacity Consultant to QCS (www.qcs.co.uk)
Rachel Griffiths, Human Rights and Mental Capacity Consultant to Quality Compliance Systems (QCS), the leading provider of content, guidance and standards for the social care sector, discusses what the new Liberty Protection Safeguards (LPS) system means for care providers.
It sometimes feels that the LPS have been hanging over us for ages. Last scheduled for implementation in early 2022 but delayed, the new safeguards are set to replace the Deprivation of Liberty Safeguards (DoLS).
And although we still don’t have an LPS implementation date, it’s looking likely that it will be towards the end of 2023. That gives care providers plenty of time to prepare for the changes. But to do so, they need to be clear what the new safeguards mean.
I delivered a webinar hosted by QCS on 26 April, where I explained the main changes, the implications for different providers and where to find out more. The following is a summary.
The ‘acid test’ for deprivation of liberty
We need to start by being clear about what this means. A person is deprived of their liberty if:
• They lack capacity to consent to the arrangements to give them essential care and treatment (in other words, their care plan) and
• They are under complete and effective supervision or control (meaning, do staff know at all times more or less what the person is doing, or often has to stop them doing something they want to do), and
• They are not free to leave (they may go out with staff or relatives, or even alone, provided staff allow this, but cannot decide to go and live elsewhere).
Protection for people’s rights: a good thing
It is an excellent thing that we’re trying to protect the rights of people whose care plans are so restrictive. The intention behind the current deprivation of liberty safeguards (DoLS) and the new LPS that will take over from them, is to create a clear and understandable process, laid out in law, that governs when and how people can be so restricted in health and care settings. It must also, importantly, allow the person, or someone representing them, to challenge these restrictions, to court.
Why are DoLS to be phased out?
Many people find that DoLS are bureaucratic, inflexible, and difficult to use. People might be deprived of their liberty in a range of settings, but the DoLS scheme can’t protect the rights of people who under 18 or who are deprived of their liberty anywhere except a registered care home or hospital.
People in supported living settings, or shared lives or extra-care housing schemes, and young people are excluded, just by the way the DoLS system is set up. Their rights can only be protected by someone, usually the commissioner of their service, applying to the Court of Protection. And this is expensive and can be stressful. So people in a range of community settings, and 16- and 17-year-olds, risk missing out on the protections that will be provided more cheaply and in a simpler way by LPS.
LPS: simpler, more flexible, and a far wider scope
The LPS scheme will apply like the rest of the Mental Capacity Act 2005 (MCA) to anyone aged 16 or over, who is deprived of their liberty to be given essential care or treatment. It also applies in any setting: this means supported living, shared lives or extra care housing schemes, and also to people in their own homes or living with their families.
What does this mean for different care providers?
Care providers will have no managerial responsibilities for LPS, they just need to know when and how to engage with the process. For care homes, accustomed to working with DoLS, the changes should be very manageable. Staff will need to learn about the new language and new processes, and they may come across new NHS responsibilities. For example, the ‘responsible body’ for people receiving NHS continuing health care will be the Integrated Care Board, which will take over from a clinical commissioning group (CCG).
Supported living providers, and others who support people in the community, need to get their heads around the concept of deprivation of liberty and how the safeguards will work. Home care services may become aware of situations where a person is deprived of their liberty in their home, perhaps by relatives; these providers need to know how and when to draw the attention of the local authority to such situations.
Children’s homes and fostering schemes will not often be depriving 16- and 17-year-olds of their liberty, but must learn to recognise deprivation, and know how and when to seek authorisation, again from the local authority, if they cannot find a less restrictive way to provide care.
How can care providers get ready?
Care providers should remember that LPS are an integral part of the MCA, and make sure they are working within the five principles.
It’s important to recognise restraint (rather than just calling it ‘support’) and think about whether any restriction is both necessary and proportionate. With any restrictions, it’s good practice to brainstorm to think if there might be a less restrictive way to keep this person safe and give the care or treatment they need.
A major part of LPS is the ‘necessary and proportionate’ test: are these restrictions necessary to prevent harm to the person, and a proportionate response to the likelihood and seriousness of this harm? This is a great tool to enable excellence in practice.
LPS are a step forward in protecting human rights in health and care settings. They will enable care providers to balance giving people as much freedom as possible to live as they choose, while finding the least restrictive ways to keep them safe and give them the care they need.
To watch the LPS webinar for free, visit https://www.qcs.co.uk/thecarer-webinar
QCS policies on the Mental Capacity Act, including restraint and deprivation of liberty.
To find out more about QCS and start a no obligation free trial, please visit www.qcs.co.uk/thecarer-free-trial