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What learning disability nurses need to know about Liberty Protection Safeguards

Be prepared for the new legislation covering people lacking mental capacity
Image of two human figures, one on huge book titled Liberty Protection Safeguards, against backdrop of scales of justice. Article explains how new Liberty Protection Safeguards for people lacking mental capacity could affect learning disability nurses.

Learning disability nurses should prepare for the new Liberty Protection Safeguards and find out how it will affect them and their practice

  • Liberty Protection Safeguards will replace Deprivation of Liberty Safeguards
  • Nurses should raise questions to ensure human rights are protected
  • New safeguards were due later this year, but the code of practice is still awaited

Existing Deprivation of Liberty Safeguards (DoLS) are being replaced in England and Wales by new Liberty Protection Safeguards (LPS) and the change is set have a major effect on the work of learning disability nurses.

Salford City Council DoLS team manager and social worker Martin Sexton says: Learning disability nurses already aim to apply the Mental Capacity Act as widely as possible, and the new LPS are intended to build on the good practice on capacity that is already out

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Learning disability nurses should prepare for the new Liberty Protection Safeguards and find out how it will affect them and their practice

  • Liberty Protection Safeguards will replace Deprivation of Liberty Safeguards
  • Nurses should raise questions to ensure human rights are protected
  • New safeguards were due later this year, but the code of practice is still awaited
Image of two human figures, one on huge book titled Liberty Protection Safeguards, against backdrop of scales of justice. Article explains how new Liberty Protection Safeguards for people lacking mental capacity could affect learning disability nurses.
Picture: iStock

Existing Deprivation of Liberty Safeguards (DoLS) are being replaced in England and Wales by new Liberty Protection Safeguards (LPS) and the change is set have a major effect on the work of learning disability nurses.

Salford City Council DoLS team manager and social worker Martin Sexton says: ‘ Learning disability nurses already aim to apply the Mental Capacity Act as widely as possible, and the new LPS are intended to build on the good practice on capacity that is already out there.

‘Now is the time for nurses to start asking questions and find out more about the new legislation. It’s not just a rebrand, it’s a completely different scheme that will have a significant impression on everyone’s practice.’

Picture of Salford city council DoLS team manager and social worker Martin Sexton. The new Liberty Protection Safeguards for people lacking mental capacity could affect learning disability nurses.
Martin Sexton
Picture: John Houlihan

LPS had been due to come into force in October, but with the COVID-19 pandemic this now seems unlikely, adds Mr Sexton.

How firmly are human rights actually embedded in health and social care practice?

‘The COVID-19 emergency has had a significant effect on planning for LPS. At present it is still the government’s official position that LPS will be introduced in October. But this seems highly unlikely as there are still no drafts of the LPS code of practice or regulations.

2 million

people in England may lack mental capacity over decisions

(Source: National Mental Capacity Forum 2016)

‘The pandemic has put attitudes towards learning disability in the spotlight, sometimes with disturbing results. For example, there have been widespread concerns over the application in some areas of do not attempt cardiopulmonary resuscitation notices to people with learning disabilities without proper consultation. 

‘This raises questions over how firmly human rights are actually embedded in health and social care practice. It reinforces the need for learning disability nurses to ask questions about LPS and seek clarity from employers and colleagues so that the scheme leads to better protection of human rights.’

Liberty Protection Safegaurds will apply to more settings than just hospitals and care homes

The Mental Capacity (Amendment) Act 2019 received royal assent in May 2019 and was due to be put into effect this year, along with a code of practice that will clarify it. It will mean DoLS – which require care homes and hospitals in which a person is ‘deprived of liberty’ to apply to a ‘supervisory body’ for authorisation – will be replaced by LPS. This will apply to England and Wales.

Summary of changes

  • The Deprivation of Liberty Safeguards (DoLS) will be replaced in England and Wales by the Liberty Protection Safeguards (LPS)
  • The new LPS will apply to supported and shared living as well as to private homes
  • LPS can be renewed for a longer period than DoLS, and evidence from front-line practice will be important in deciding on an LPS
  • Learning disability nurses will be involved in more decision-making and take on new responsibilities for assessing the evidence for an LPS
  • The code of practice and regulations clarifying the specifics are yet to be issued

Source: National Mental Capacity Forum 2016

 

One major change is that LPS will apply to other settings as well as hospitals and care homes. Supported and/or shared living will now be covered, as will private homes. They also apply to arrangements such as transport or day centres, and to people aged 16 and 17 for the first time.

4 years

Longest period that Liberty Protection Safeguards can be maintained

(Source: Mental Capacity (Amendment Act) 2019)

The ‘responsible body’ that authorises LPS applications will also be extended. At present they are all submitted to the local authority, which is termed the ‘supervisory body’. The ‘responsible body’ will now include NHS hospitals for inpatients – the local authority will remain the responsible body for independent hospitals – and clinical commissioning groups for people receiving continuing health care.

Law Society Mental Health and Disability Committee co-chair Paul McGough says: ‘There will be more applications, and bodies that aren’t doing this now will have to learn to do it.’

LPS will also last much longer than DoLS. After the initial 12-month period it can be renewed for one year and after that for a further three years.

LPS assessment process can be coordinated by a care home manager

Before the LPS arrangements can be authorised there will first be assessments, compiling evidence of mental disorder and lack of capacity, an analysis of the restrictions, and a statement that they are necessary and proportionate to prevent harm occurring to the person.

There will be three conditions for authorisation, whereas under DoLS there are six. One important new development is that the assessment process – not the review process – may be coordinated by a care home manager if the arrangements are to be carried out mainly or completely in the home and the responsible body believes that it is appropriate for the care home manager to do so.

‘Unlike with DoLS, the focus is on the totality of someone’s care arrangements, such as collection to go to a day centre every day, and the evidence comes from front-line practice,’ says Mr Sexton.

‘I imagine learning disability nurses will be asked to play a significant role in this. They may also be asked to review the assessment to see if it meets the LPS criteria.

3 conditions

must be met for authorising Liberty Protection Safeguards

(Source: Mental Capacity (Amendment Act) 2019)

‘That role will be challenging, and it could be quite lonely as well, so whoever is in that position needs to think about the support they’ll have in doing it, and over any disagreement on whether or not there is enough evidence – and there will be disagreements, because that is how LPS need to work. They need a clear backup and statement from the responsible body that this is an important job.’

At the same time an ‘appropriate person’ should be identified to support the person, in addition to anyone who has been named as having power of attorney. If there is no one to take on this role an independent mental capacity advocate (IMCA) should be appointed.

The role carries over from the Relevant Person’s Representative in DoLS, but what is new is that an IMCA has to be allocated if friends and family are deemed unable or unsuitable to do it.

‘We have concerns about the robustness of the safeguards’

Dan Scorer, Mencap head of policy and public affairs

After that there is a ‘pre-authorisation review’. If there is no reason to believe that the person objects to the place in which they are living and/or the care they are receiving, this will be a paper-based process carried out by an approved professional.

Picture of Mencap head of policy and public affairs Dan Scorer. The article explains how the new Liberty Protection Safeguards for people lacking mental capacity could affect learning disability nurses.
Dan Scorer

Safeguarding element needs to be paramount

If there is reason to believe that they do object, the review will be carried out by an approved mental capacity professional (AMCP). This is a new role which is intended to build on the existing ‘best interests assessor’ role in DoLS.

The LPS has the potential to make some important changes, especially with the shift to the person rather than the setting. At the same time there is a widespread feeling that the ‘safeguarding’ element of an LPS needs to be paramount, and that there are some areas, such as removing the ‘best interests’ criteria for authorisation, which may not be for the best.

Mencap head of policy and public affairs Dan Scorer says: ‘We want the least restrictive options, and the support that will maximise people’s capacity and their ability to make their own decisions. We have concerns about the robustness of the safeguards.’

Independent consultant learning disability nurse Jim Blair is also concerned about how this will be evaluated and monitored

‘Monitoring is absolutely crucial. It should be part of the regular handover process between all practitioners who are involved in working with the person: just “X is on an LPS : how’s that working? Should we be reviewing it or modifying it?” in the same way as other questions.’

Picture of independent consultant learning disability nurse Jim Blair. The article explains how the new Liberty Protection Safeguards for people lacking mental capacity could affect learning disability nurses.
Jim Blair Picture: David Gee

‘We want the least restrictive options’

There is also a need to establish a balance between flexibility and guidelines. Mr Sexton says: ‘LPS is designed to be flexible and used in different ways. People may find themselves working differently from their colleagues. But it does also establish new responsibilities and roles, and there are questions across the workforce about the implications.’

Mr Blair says: ‘People will need a uniform approach. In the past, the feeling was that people were overcautious at times. Now we need clarity about what actually constitutes the justification for an LPS.’  

Mr Sexton is keen to stress the positives. ‘Everyone is working in a person-centred way.’ At the same time, to make LPS work most effectively for everyone, this is the time for professionals to start pushing for clarity.

He adds: ‘Until we see the code and regulations, and responsible bodies start planning, we won’t know the detail, but this is the point at which we need to start investigating and thinking about the implications for our jobs.’

Mental capacity recap

It is estimated that about 2 million people in England ‘may lack the mental capacity to make a specific decision at the specific time required’. In England and Wales people are covered by the Mental Capacity Act 2005. Elsewhere it’s the Adults with Incapacity (Scotland) Act 2000 and the Mental Capacity Act (Northern Ireland) 2016).

The Mental Capacty Act 2005 is based on the principles that a person must be assumed to have capacity unless it is established otherwise; that they are not to be treated as unable to make a decision unless all practicable steps to help them to do so have been tried; that they are not incapable of making a decision just because they make an unwise decision; that any decisions or acts on behalf of people who lack capacity should be in their best interests; and the ‘least restrictive option’ should always be a priority.


Picture of health writer Radhika HolmströmRadhika Holmström is a health writer

 

 


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