LPS Implementaion

Preparing for the Liberty Protection Safeguards implementation

Published: 20/10/2021

Author: Alex Ruck Keene

The Liberty Protection Safeguards (LPS) are due to come into force in 2022 to replace, and extend, the provisions of the current Deprivation of Liberty Safeguards (DoLS).

They will provide a framework to ensure appropriate checks, balances and safeguards are secured for people whose needs are such they must be provided with care or treatment in circumstances of confinement to which they cannot consent.  As our understanding of what constitutes a deprivation of liberty has widened thanks to decisions of the Supreme Court, it is now clear that there are very many people who need such checks, balances and safeguards, including:

  • people in their own homes, and
  • people who appear to be entirely content with the arrangements made for them, but whose cognitive impairments mean that they cannot give the valid consent required by the law.  

We are still waiting for flesh to be put on the bones of the statutory regime, but there is much which is already known, and much which can be done now to prepare for implementation, above all by starting ‘LPS thinking’ as soon as possible in the following ways.  

The first is front-loading thinking about the core components as early as possible in any care planning process. It is already necessary to think in care planning about:

  • the person’s decision-making capacity,
  • whether any arrangements which may be put in place to secure their care and treatment will give rise to a confinement, and
  • about there is any other less restrictive way in which to secure their care and treatment. 

The earlier this thinking can be considered and documented, the closer practice will be to the LPS model. And, even under DoLS, the better quality the documentation, the lighter touch scrutiny the assessors will have to give it before they reach their conclusions.

When it comes to capacity, it is important – already – to consider whether the person can process the information that they are confined (see this case). This will be central to the capacity test to be applied to LPS in due course, so getting familiar with this now will ease the transition.

Similarly, when it comes to thinking about the best interests requirement under DoLS, the greater the focus upon the consideration of necessity and proportionality (which forms part of the test), the readier practitioners will be for the total focus upon this aspect under LPS.  

Finally, making applications for so-called ‘community Deprivation of Liberty’ orders to the Court of Protection is not only necessary at the moment to provide lawful authority to deprive someone outside the scope of DoLS  it is also the best form of training for LPS that can be undertake. It is, in essence, asking the same questions, and posing the same requirements in terms of such things as consultation, as will be required under the LPS.

The sole difference is that, at present, the final application goes to judge, rather than, as will be the case in future, it will for Pre-Authorisation Review organised by the Responsible Body.

For more detail about how to make such applications, see this guidance note.

Alexander Ruck Keene

Alex Ruck Keene

Alex Ruck Keene is a practising barrister, specialising in mental capacity law.