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