Liberty Protection Safeguards: Guidance on Key Changes

September 24, 2021
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From April 2022, Deprivation of Liberty Safeguards (DoLS) is changing to Liberty Protection Safeguards (LPS). This change was previously scheduled for October 2020, however has been delayed due to the COVID-19 pandemic. DoLS and LPS refer to the protection of your rights if you are, or may become, deprived of your liberty in a hospital or care home.

If you work with adults that lack the capacity to make particular decisions for themselves, DoLS and LPS are especially important to your role. There are also some key changes that you need to be aware of. In this article we will outline the aim of LPS and why it is changing from DoLS.

What is the Aim of Liberty Protection Safeguards?

Liberty Protection Safeguards provide protection for people aged 16 and above who are, or need to be, deprived of their liberty. This is to enable their care or treatment and only for people that lack the capacity to consent to their arrangements. This includes people who are sectioned and detained under the Mental Health Act and people with learning disabilities, autism or dementia.

LPS hopes to deliver improved outcomes for people and has been designed to put the rights and wishes of those people at the centre of all decision-making. To deprive someone of their liberty means they are not allowed to leave where they live without being accompanied and are always under supervision.

LPS applies to a person’s own home or family home, shared living and supported living, hospitals and care homes. If an individual lacks the capacity to consent to being deprived of their liberty, due to illness, injury or disability, decisions will be made for them and within their best interests.

It is important to note that if you work in health and social care, you may be called upon by an approved mental capacity professional (AMCP). The role of an AMCP is to review a person’s capacity to make decisions about their care; they call upon people involved in the individual’s care, powers of attorney and the person themselves to make this decision. Consequently, as part of your role you may be asked questions about an individual you care for as part of their assessment.

If an individual in your care has LPS in place, their care will be different to those without LPS. You must be aware of whether individuals have LPS as it will affect every aspect of their care. This should be documented in their care plan and is part of your duty of care as a health and social care worker to implement when you support or care for them.

Why is the Deprivation of Liberty Safeguards Being Changed?

In 2014, the same year the Care Act was implemented, the need for safeguarding people who lack capacity and need to be deprived of their liberty increased. As a result, there was a large increase in the number of DoLS applications which left local authorities with a backlog of cases and struggling to cope. Therefore, the DoLS procedure was reviewed and subsequently the government formed the Mental Capacity Amendment Act (2019), which outlines a new system – LPS.

LPS have the same goals DoLS but with some streamlining to make the system run a little more smoothly. It is worth noting that DoLS will run alongside LPS for a year after implementation to ease the transition of existing cases.

It is also important to point out that the five principles of the Mental Capacity Act 2005 remain in place; from a person being assumed to have capacity unless it is established that they don’t, to a person not being treated as unable to make a decision merely because they make an unwise decision.

The aim of the new scheme is to spread the responsibility across hospitals, Clinical Commissioning Groups (CCGs) and social care so as to share the administrative burden, whilst also building the LPS process into the care planning procedure itself. LPS also broadens the scope to treat people, and deprive them of their liberty, in a medical emergency, without gaining prior authorisation.

Summary of the LPS Update

LPS will replace the DoLS system to deliver improved outcomes for those who are, or need, to be deprived of their liberty. It is designed to put the rights and wishes of those people at the centre of all decision-making on deprivation of liberty and is planned to come into force in April 2022.

The key changes include:

Extending the scheme to 16 and 17-year-oldsdrop down menu

One of the key features of LPS is that it applies to more people, including 16 and 17-year-olds and people in hospitals, supported living and their own home. Currently, when a 16 or 17-year-old needs to be deprived of their liberty, an application must be made to the Court of Protection.
Under LPS, ‘responsible bodies’ can authorise the arrangements without a court order. This will deliver more proportionate decision-making about deprivation of liberty and minimise potential distress for young people and their families.

Responsible Bodiesdrop down menu

Another change is that each care provider will have a ‘responsible body’ to organise tests and assessments to investigate and authorise any deprivation of liberty. This could be a hospital trust or a council’s adult social care services.
The responsible body must speak to the individual and their loved ones, and family and friends can act as an appropriate person to support their loved one through the process. Ultimately, the responsible body is in control of authorising any deprivation of liberty in certain settings.
For NHS hospitals the responsible body with be the hospital manager. For continuing health providers outside of hospital, the responsible body will be their local Clinical Commissioning Group. In all other cases, such as care homes or supported living, the responsible body will be the local authority.

Authorisation of Liberty Protection Safeguardsdrop down menu

Three assessments will form the basis of authorisation of LPS.
The assessments measure:

  • Whether the person has a mental disorder.
  • Whether their disorder is severe enough to mean they lack capacity to consent to their care and treatment and how they are cared for.
  • Whether the need for the care and treatment proposed is necessary and proportionate to the risk of harm they will likely suffer without this care.

The assessment process will be embedded into existing care planning and it will be easier to use existing assessments where reasonable and appropriate. The responsible bodies will organise the assessments and ensure there is sufficient evidence to justify a case for deprivation of liberty.
Once a deprivation is authorised, safeguards include regular reviews by the responsible body and the right to an appropriate person to protect the person’s interests. As with DoLS, the Court of Protection will oversee any disputes or appeals. Furthermore, once a deprivation is authorised, it can be renewed initially for one year but, subsequent to that, for up to three years.

Greater involvement for familiesdrop down menu

As part of LPS, there will be a duty to consult those caring for the person and those interested in the person’s welfare before a deprivation of liberty occurs. Also, there will be an opportunity for a family member or someone close to the person to represent and support the person through the process. Furthermore, they can raise concerns throughout the process and in response to any authorisation.

Extending the scheme to domestic settingsdrop down menu

LPS will apply to individuals residing in domestic settings who need to be deprived of their liberty.
Domestic settings include:

  • The person’s own home and family home.
  • Shared living.
  • Supported living.

This change ensures that all individuals who need to be deprived of their liberty will be protected under LPS, regardless of where they live and without the need to go to court.

Targeted approachdrop down menu

Where it is reasonable to believe that the person would not wish to reside or receive treatment or care at the specified place, the case must be considered by an approved mental capacity professional (AMCP). This provides an additional protection.
The Responsible Body may also refer other cases to the AMCP who can accept those referrals and consider those cases too. The AMCP will review the information on which the responsible body relies, meet with the person if appropriate and practicable, and complete consultation if appropriate and practicable.
The review will be carried out with:

  • The person.
  • Anyone named by the person as someone who should be consulted.
  • Anyone engaged in caring for the person.
  • Anyone interested in the person’s welfare.
  • Any attorney of a lasting power of attorney (LPA) or an enduring power of attorney (EPA).
  • Any deputy appointed by the Court of Protection.
  • Any appropriate person.
  • Any independent mental capacity advocate (IMCA).

How Might Health and Social Care Professionals Put LPS Into Practice?

If you work in health and social care, it is important you have an awareness of what is covered by the safeguards and the Mental Capacity Act 2005. This ensures you know what level of support people need in line with their abilities and ensures you are providing high-quality care. Awareness of the legislation also protects and empowers people using any care services, which is an important element of person-centred care. 

Workers across the adult social care system should prepare for the LPS as the changes will affect direct work with adults, and in some cases young people. LPS will require new systems and ways of working at all levels across these organisations and it is vital that implementation of LPS is successful so that the new system provides the safeguards needed.

Areas where partner agencies come together in good time to plan how they will prepare for the LPS will be well equipped for their implementation in April 2022. This includes colleagues across: local authorities, Clinical Commissioning Groups, Hospital Trusts, care provider organisations, ambulance services, the police force, and prisons (as it is possible that arrangements for securing care and treatment in prison will require authorisation under the LPS).

Liberty Protection Safeguards will be introduced in April 2022 and will protect individuals aged 16 and above who are, or need to be, deprived of their liberty. These changes aim to streamline the safeguarding system by sharing responsibilities between services. If you work in health and social care it is important that you are aware of the changes that are going to be made so you can prepare in advance and provide the appropriate care and support.

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