Latest update from the Liberty Protection Safeguards team at the DHSC

The Liberty Protection Safeguards team responsible for implementing the roll out of the replacement for DoLS, has sent out their latest newsletter including updates on the MCA Code of Practice and the Health and Social Care Bill published in February. 

The key parts of the newsletter are reproduced below:

"Publications
All significant announcements and publications can be found on our ‘LPS documents collection page’, which we keep updated.

The National Steering Group for LPS met on the 10th February to discuss the updated Impact Assessment (IA) for the Mental Capacity (Amendment) Act 2019 (MC(A)A) which was published on 29th January. At the meeting, Steering Group members offered feedback on the IA and discussed plans for further revisions and updates. A summary of that discussion is available here.  

As we explained in our last newsletter, the latest IA assesses the design of LPS as set out in the MC(A)A. It is therefore an incomplete and non-final assessment of the impact of LPS overall. The Government will undertake a more detailed impact assessment of LPS overall, including policy details to be specified in secondary legislation, after public consultation.

Progress on the updated MCA Code of Practice, including LPS sections
We are making good progress on a draft of the proposed Code of Practice for LPS, for public consultation. As we have explained before, detailed information about LPS will feature as distinct chapters within an updated version of the overall MCA Code of Practice - so in fact there will be only be one Code document, not two. This will help to clearly align LPS practices with the overarching principles of the MCA, minimise repetition and allow for helpful cross referencing between chapters within the Code.  

Many stakeholders and experts by experience have helped us with drafting the LPS sections of the Code in previous months and years. We are grateful for their considerable input and have considered all of their advice in producing a draft for public consultation. We expect the updated MCA Code to consist of 25 chapters, listed below. Working from earlier drafts, which some of you will have seen, we have merged some chapters to try and make information on LPS as clear as possible. We will be asking for your feedback on this draft, once we reach public consultation.

Our next step is to share a draft of the Code with the National LPS Steering Group, in April.

The proposed chapters of the MCA Code of Practice, for public consultation, are:

• What is the MCA 2005? (Including an introduction to LPS.)
• What are the statutory principles and how should they be applied?
• How should people be helped to make their own decisions? (Also covering ‘How the Person is Involved’ and ‘Information Rights’.)
• How does the Act define a person’s capacity to make a decision and how should capacity be assessed?
• What does the Act mean when it talks about “best interests”?
• What protection does the Act offer for people providing care or treatment?
• What is the role of the Court of Protection? (Also covering ‘LPS Court of Protection’.)
• What does the Act say about the Lasting Powers of Attorney?
• What does the Act say about Deputies?
• What is the Independent Mental Capacity Advocate (IMCA) Service? (Also covering ‘LPS IMCAs’.)
• What does the Act say about advance decisions to refuse treatment?
• What is a Deprivation of Liberty?
• What is the Overall LPS Process? (Also covering ‘If I think there is a DoL’.)
• What is the role of the Responsible Body? (Also covering ‘Correct Responsible Body, Responsible Body Oversight of LPS’ and ‘Cross Border Working’.)
• What is the role of the Appropriate Person?
• What are the Assessments and Determinations for LPS?
• What is the LPS Consultation?
• What is the role of the Approved Mental Capacity Professionals (AMCP)?
• What is Section 4B, and how is it applied?
• How is the LPS system Monitored and Reported on?
• How does the Act apply to children and young people? (Also covering ‘LPS 16-17 Year Olds’.)
• What is the relationship between the Mental Capacity Act and the Mental Health Act 1983? (Also covering ‘Interface between LPS and the MHA’.)
• What are the best ways to settle disagreements and disputes about issues covered in the Act? (Also covering ‘LPS Challenging Arrangements’.)
• What rules govern access to information about a person who lacks the relevant capacity?
• How does the Act affect research projects involving a person who lacks the relevant capacity?

The content, titles and ordering of chapters may change slightly as we finalise the draft Code for public consultation.

LPS and the Health and Social Care Bill
The White Paper: ‘Integration and Innovation: working together to improve health and social care for all’ was published on the 11th of February. In this, the Government set out its intention to establish statutory Integrated Care Systems (ICSs). These plans propose that ICSs will carry over many of the core functions of Clinical Commissioning Groups (CCGs), whilst also taking on new roles to move towards a more integrated health and care service, at a local level.

The role of CCGs as the Responsible Bodies in England under LPS is tied to their commissioning role for Continuing Health Care (CHC). As a core function of CCGs, we expect CHC to become the responsibility of the new ICSs, and therefore the Responsible Body function under LPS will also transfer to ICSs.  

We are continuing to work closely with the teams leading the work on these reforms, and CHC overall, both at DHSC and NHSE, as this policy develops. We will keep stakeholders updated of any changes that affect LPS, including what this means for implementation.

Deprivation of liberty before LPS is implemented
Before LPS is implemented, the safeguards provided by the DoLS still apply. Legal duties to determine if someone is, or will be, deprived of their liberty as a result of the arrangements for their care and treatment, remain. If this is the case, then legal authorisation is required and it is important that decision-makers comply with their existing legal requirements for this. For adults residing in a care home or hospital, this would usually be provided by the DoLS. If the person is aged 16-17, or residing in any other settings, then an application to the Court of Protection should be considered.

Decision-makers should always consider less restrictive options for that person. They should avoid depriving someone of their liberty unless it is absolutely necessary and proportionate to prevent serious harm to the person.

Last year, the Local Government and Social Care Ombudsmen issued a decision that is relevant to DoLS practice before LPS is implemented. This is just one example but practitioners may wish to have a look and consider the potential implications for their own work.

Infection Prevention: Protecting yourself and people living with dementia (webinar)
The Department of Health and Social Care and the Better Care Fund team are hosting  a webinar on 29th March from 14:00 - 15:30 which will focus on the continued importance of infection prevention and control during the pandemic, with the added challenges faced by social care staff when supporting people with dementia and other cognitive impairment. More detail and registration information is here."