Liberty Protection Safeguards

In March, the government launched a consultation on various documents that will support the implementation of the Liberty Protection Safeguards. This included a new draft Mental Capacity Act Code of Practice and new draft Regulations. These documents have been long-awaited since the Mental Capacity (Amendment) Act (which introduced the Liberty Protection Safeguards) was passed in 2018. It was hoped that these documents would put ‘flesh on the bones’ of the legislation and give more detail about how the Liberty Protection Safeguards (LPS) will work in practice. 

What are the Liberty Protection Safeguards (LPS)? 

If someone is deprived of their liberty through their care or treatment arrangements, and they lack capacity to consent to the arrangements, this must be authorised by a legal framework to ensure the person’s human rights are protected. Currently, this is authorised via the Deprivation of Liberty Safeguards (DoLS) if the person lives in a care home or is in hospital, or by the Court of Protection if the person lives in the community. LPS will replace the DoLS and will apply to all settings, so there will be no need to apply to the Court of Protection for an authorisation. LPS will also apply to people aged 16+.  

What have we been doing during the consultation? 

As well as preparing and submitting our consultation response, Advocacy Focus have been busy engaging with our stakeholders and colleagues from other advocacy providers. We have chaired a nationwide LPS subgroup of advocacy providers, facilitating discussion of the main talking points arising from the consultation documents. We have also signed up to a joint advocacy sector response with around 30 other advocacy providers. 

We co-hosted a webinar with Kate Mercer Training and NDTI to engage the wider advocacy community with the consultation. This involved looking at some of the key provisions of the draft Code of Practice and Regulations relating to advocacy and the IMCA role (and the consultation questions relating to these) and thinking about some of the key points advocacy providers may wish to make when responding to the consultation. Neil Allen from 39 Essex Chambers also kindly attended and spoke about the good points and concerns about advocacy provision as set out in the draft Code of Practice.  

We have attended meetings held by the Department of Health and Social Care to discuss our feedback on the role of the Independent Mental Capacity Advocate (IMCA) and the Appropriate Person.  

We have also been discussing our thoughts and main feedback points from the consultation with our commissioners, making them aware of the changes and the level of funding that is likely to be required in order to facilitate the increased number of advocates that will be needed to implement the LPS as envisaged by the draft Code of Practice. 

What points did we make in our consultation response? 

In our own consultation response, we made several points relating to the provision of advocacy and how the Code and Regulations address this. We raised concerns around how neither the Regulations nor the Code set a minimum required frequency for Independent Mental Capacity Advocates (IMCAs) to visit the person deprived of their liberty (which could lead to the quality of the IMCA service becoming a ‘postcode lottery’). Further, the regulations do not give an IMCA the right to meet with the person deprived of their liberty when the IMCA is supporting their Appropriate Person – we feel that this reduces the current 39D IMCA role where the IMCA provides an additional safeguard to the person when being supported by an unpaid representative (generally family or friends). We referenced several parts of the draft Code of Practice where the role of an IMCA is incorrectly stated – e.g. IMCAs are not mediators, nor do they express a view about what is best for the person or what the person should do. 

We looked at the figures estimated by the impact assessment and compared those to the current trends we see in our referral rates under DoLS. We also considered the increase in the level of responsibility in the role of the Appropriate Person (that will be taken on by a family or friend) compared to the current unpaid Relevant Person’s Representative role (RPR) and questioned whether as many people would be prepared to take on this role as the impact assessment states. We therefore made the point that the actual demand for advocacy would likely be higher than estimated by the impact assessment. We have made the point that if LPS is to be as person-centred as the draft Code of Practice envisages, it is vitally important that sufficient funding is provided to advocacy providers to train their existing advocates in LPS but also to recruit and train new advocates. 

We also share the concerns raised by many others throughout the consultation period regarding the definition of deprivation of liberty as set out in the draft Code of Practice. We raised concerns that if the definition is applied as set out in the draft Code and example scenarios, lots of people who currently have a DoLS authorisation would not be eligible for an LPS authorisation, leaving lots of people heavily restricted but without any safeguards or support in place to challenge this. 

What happens next? 

The government will publish their response to the consultation – they have said that they will do this in Winter, so this could be late this year or early next year. There is not yet a date set for the implementation of LPS. We will continue to monitor for updates and continue to hold meetings of the advocacy LPS sub-group.