News and updates for today's conference
Liberty Protection Safeguards: The Mental Capacity (Amendment) Act 2019
Tim Spencer Lane, Lawyer, formerly of Law Commission for England and Wales
The Mental Capacity (Amendment) Bill was approved by Parliament on 24th April 2019, and became the Mental Capacity (Amendment) Act when it received the Royal Assent on 16th May 2019.
The legislation provides for the repeal of the Deprivation of Liberty Safeguards (DoLS) contained in the Mental Capacity Act 2005 (MCA), and their replacement with a new scheme called the Liberty Protection Safeguards (LPS)
The LPS establishes a process for authorising arrangements enabling care or treatment which give rise to a deprivation of liberty within the meaning of Article 5(1) of the European Convention on Human Rights (ECHR), where the person lacks capacity to consent to the arrangements. It also provides for safeguards to be delivered to people subject to the scheme.
The government is currently working on the LPS code of practice, which it has committed to publish for public consultation later this year. A number of regulations will also need to be drafted before the legislation can be implemented.
The intention is for the new Liberty Protection Safeguards system to come into force on 1st October 2020, subject to ongoing implementation planning with delivery partners and the Welsh Government and progress of the work on developing the Code of Practice and regulations for this reform. The government has confirmed that for up to a year the DoLS system will run alongside the LPS to enable those subject to DoLS to be transferred to LPS in a managed way.
The Mental Capacity Act & Liberty Protection Safeguards
Rachel Griffiths MBE, Consultant, Mental Capacity Act and Human Rights
How do the Liberty Protection Safeguards (LPS) fit within the wider MCA?
When people lack capacity to consent to care plans designed to keep them safe, it is essential that issues of restraint and deprivation of liberty are recognised as part of the continuum of the Mental Capacity Act (MCA), and approached within the empowering ethos of the five statutory principles.
The Mental Capacity (Amendment) Act unfortunately omitted the Law Commission’s far-sighted proposals to strengthen Article 5 of the MCA. This risks the Bill being perceived as something ‘other’ than the wider MCA. It is excellent news that, in contrast to the current separation of the DoLS code from the MCA code, the department of health and social care (DHSC) and ministry of justice (MoJ) are embracing the opportunity to produce an integrated, revised code with, of course, full new chapters referring to, and explaining, how the LPS will work in practice.
In preparation for the rollout of LPS, it is recommended to remain alert for bulletins and guidance to be produced by the DHSC to help with implementation. When briefing stakeholders, for example commissioners and clinicians, about this conference – as we hope you will - it is essential to set the LPS firmly within the wider MCA: by doing this, the ‘novelty value’ of LPS can be used to enable much-needed improvement to practice throughout health and social care for adults who may lack mental capacity.
Full PowerPoint Presentation
Monitoring & Inspection of LPS and DoLS during transition
Adrian Dunsterville, Regulatory Policy Manager – Mental Health, Care Quality Commission
Adrian Dunsterville has worked in health and social care for over 25 years. His first post graduate job was as a support worker for adults with learning disabilities. Since that time he has held a variety of roles in the public and voluntary sector, including work with children, adults and older people with mental health needs, autism and learning disabilities, and managing CQC registered care home and supported living services at local, area and regional level.
Before joining CQC in 2014 as an Inspection Manager in adult social care, Adrian worked as a Lead Practitioner for a medium sized voluntary sector provider, developing operational, policy, business and strategic change. Adrian’s current role is Policy Manager in CQC’s Mental Health Team, among other things leading on the organisation’s Mental Capacity and DoLS policy and preparing for the implementation of the Liberty Protection Safeguards.
Implementation of the Liberty Protection Safeguards
Linsey Craike, Head of Adult Safeguarding and Liberty Protection Safeguards, and Lydia Brindley, Policy Advisor, Liberty Protection Safeguards, Department of Health and Social Care
Full PowerPoint Presentation