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Liberty Protection Safeguards (LPS) - Looking Forwards
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Eleanor Roosevelt, the diplomat and activist who oversaw the
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drafting of the Universal Declaration of Human Rights, is quoted as saying:
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Where, after all, do human rights begin ? In small places, close to home - so close and so small that
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they cannot be seen on any map of the world.Yet they are the world of the individual person.
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The philosophy embodied in this statement underpins an amendment
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to the Mental Capacity Act, due to come into force soon.
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Known as LPS, the Liberty Protection Safeguards, the amendment shifts the focus
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from the deprivation of liberty - as, until now, has been the case -to the protection of liberty.
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Following a series of landmark cases which highlighted shortcomings in both the MCA and DoLS,
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LPS builds on the founding principle of wellbeing that underpins the Social
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services and Wellbeing(Wales) Act 2014 and the Mental Health(Wales) Measure 2010,
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which set in legislation that the core purpose of care and support
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is to help people to achieve the outcomes that matter to them in their life.
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LPS is about making sure that the care and health sectors have done what we can
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to protect the person’s liberty and rights to family life.
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The Social Services and Wellbeing Act, the Mental Health Measure and the Mental Capacity
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Act have built a solid foundation for the way we work in health and social care. The
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safeguards will help us to develop the processes we already employ.
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Further to the principle of wellbeing, there are eight other significant principles woven through
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the tapestry of both the Social Services and Wellbeing Act(1:59) and the Mental Health Measure,
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each guiding us to ensure that we keep the person at the centre of any intervention,
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including any that could result in a deprivation of their liberty.
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Strengths - based approach
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We should practice using a strengths-based approach,
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to establish a quality relationship with the individual needing support.
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We should look first at what the individual can do rather than just focusing on their difficulties.
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We should be practicing this way continuously, as promoting individual wellbeing -looking at
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the little things which mean the world to that person - is central to Adult Social Care support.
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Under LPS, the sectors are reminded of the necessity,
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right at the outset, to consider a person’s mental capacity to make decisions
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and to work to promote liberty thus maximising the person’s gifts, skills and capabilities
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to enable them to exercise their right to make decisions about their own life.
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If during care and support planning or care and treatment planning, arrangements are needed to
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enable that person’s care or treatment which may amount to a deprivation of liberty, this,
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regardless of the setting within which it will be provided, should be considered under LPS.
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Our conversations with individuals, regardless of the reason for the contact should be working
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towards supporting the individual to have as much voice and control as possible. We must
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be taking into account the person’s values, their beliefs, what is important to them and why: often,
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things so small that they cannot be seen on any map of the world, to enable this to be achieved.
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LPS places a duty on the sectors to consult with the person to ascertain their wishes and feelings,
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and it is explicit that prior to putting any arrangements in place,
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we have actively encouraged and supported participation, ascertained the person’s view
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as part of the best interest process, ensuring that it is the least restrictive option.
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Under LPS, the Responsible Body - typically the Health Board or local authority - must ensure that
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support is in place prior to any pre-authorisation assessments and that an Independent Mental
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Capacity Advocate, IMCA, will provide this if an Appropriate Person is not available.
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However, if the person is identified to have at least substantial difficulty at the point
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that an assessment of need begins, then this support mechanism must already be in place.It
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may be from an Appropriate Person, an Independent Advocate or an Independent
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Mental Capacity Advocate, if decisions are to be made in the person’s best interest.
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LPS further reinforces the necessity to have a framework through which we can work together to
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maximise the person’s involvement, enabling them to retain as much voice and control as possible.
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Transparency is about being clear to the individual
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and those representing them as to why a decision is being made, when it may be necessary deprive
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an individual of the things which often may seem small, but which mean the world to them.
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LPS builds the protection of liberty into the existing care and support and care and
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treatment planning processes. The conversations around potential deprivations of liberty will
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take place sooner; and if we are working using strengths-based approaches, seeking to support
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the individual to have as much voice and control as possible, maximising their involvement in the
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discussions and the decision-making process, it should be easy to make our practice transparent.
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The Social services and Wellbeing Act and the Mental Health Measure
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recognise that a person’s needs may impact on their families and support networks too.
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Under LPS, as consideration to the impact of a care and support
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plan or care and treatment plan on the person’s liberty will be taking place
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prior to the deprivation, it will be done in the context of this principle.As such,
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discussions and potential for support of those impacted by the deprivation can take place.
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Being holistic is about ensuring that decisions consider all the individual’s circumstances,
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their needs in the context of their skills, ambitions and priorities
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and recognising that it is not possible to support the person with needs,
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without seeing how the person fits into their wider social network.
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To ensure that all the individuals’ circumstances are considered, LPS makes it a requirement to
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consult others, for example, anyone interested in the person’s welfare.
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Under the Social services and Wellbeing Act and the Mental Health Measure,
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any intervention has to be of benefit to the person concerned - and it needs to be appropriate.
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What is appropriate will be determined by the level of needs of the individual -
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and, as each individual’s world is different - our response must be appropriate to that.
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Under LPS, previously determined assessments may be used,
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such as those recorded in care and support plans and Care and Treatment plans,
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capacity to consent to arrangements and medical assessment of a mental disorder, if they remain
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appropriate. This enables an appropriate level of intrusion in the person’s world.
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Whilst there is flexibility under DoLS regarding the time frame for authorisation, LPS will offer
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greater flexibility appropriate to the person’s needs and not subjecting them to annual renewals.
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For example, for someone with end stage dementia, it may not be necessary to
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renew on an annual basis as, on the balance of probability, their capacity will not return.
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However, the opportunity exists to request unscheduled reviews, should an individual’s
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circumstances change.Furthermore reviews of LPS, Care and Support plans
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or care and treatment plans can be aligned thus reducing unnecessary bureaucracy.
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The principle of proportionality ensures that the level of support provided
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corresponds with the level of need - and no more.We should protect human rights - which
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begin in small places - and we should not be intruding in these unnecessarily.
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Currently, the Best Interest Assessment for a DoL authorisation seeks to ensure that the
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deprivation is a proportionate response to the likelihood of the person suffering harm - taking
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into account the seriousness of that harm - and that the placement is necessary to prevent this.
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LPS considers how a care and support plan or care and treatment plan in any
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setting could jeopardise the person’s liberty, and that the deprivation is
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proportionate to the perceived level of harm and subsequent impact of it.
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The Social services and Wellbeing Act and the Mental Health Measure recognise that contact
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with a person at a single point in time will not necessarily provide a full picture of their needs.
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As there is the expectation under LPS that the sectors will be working to protect a person’s
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liberty, there will be more scope to ensure that a fuller understanding
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of not only what is important for the person, but important to them and why,
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those things so small that “they cannot be seen on any map of the
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world … the world of the individual person.”
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LPS reinforces the necessity of the Social services and Wellbeing Act and the Mental
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Health Measure to ensure that the person is fully involved, ensuring that their voice is heard,
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and that they are - to the best of their ability - making decisions for themselves.
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As with DoLS, under LPS, there is a specific duty for the Responsible Body to make sure
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support is in place.What is different under LPS is that
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it explicitly introduces a Duty to Consult and consider a person’s wishes and feelings
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LPS involves the legal responsibility to protect liberty and places a duty
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on Responsible Bodies to assess for and authorise proposed deprivations of liberty, in any setting,
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rather than authorising once liberty has been deprived.
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Building on the successes of the MCA, DoLS and the principles of both the Social services
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and Wellbeing Act and the Mental Health Measure, LPS may be seen as a recognition
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of the truth which lies behind Eleanor Roosevelt’s statement regarding the origin of human rights.
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Where, after all, do human rights begin? In small places, close to home - so close and so small
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that they cannot be seen on any map of the world. Yet they are the world of the individual person.