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Liberty Protection Safeguards has received royal assent!

Details

The Mental Capacity (Amendment) Act 2019 received royal assent on 16 May 2019 following, a long debate of the Mental Capacity (Amendment) Bill over recent months.

This article provides a summary of the key points:

Statutory definition

No statutory definition has been provided within the Act. Guidance is to be given within the Code of Practice to the LPS which is yet to be drafted.

Age

LPS applies to individuals aged 16 and over.

Responsible bodies

Responsible bodies will be:

  1. Hospital managers: for arrangements in an NHS hospital
  2. CCG or Local Health Board: in cases where a person is eligible for continuing health care
  3. Local Authority: in all other cases

The conditions

The conditions to be satisfied before arrangements can be authorised are as follows:

  1. P lacks capacity to consent to arrangements
  2. P has a mental disorder
  3. the arrangements are:
    1. necessary to prevent harm to P
    2. are proportionate in relation to likelihood and seriousness of harm to P 

Pre-authorisation

Prior to authorisation, a responsible body must carry out consultations with P and others.

A pre-authorisation review must be carried out by someone not involved in day-to-day care to determine the reasonableness of a conclusion that the above three conditions are met.

Safeguards and representation

P has the right to information, regular reviews, and the right to challenge the authorisation via the Court of Protection pursuant to the new s.21ZA (which will attract non-means-tested legal aid).

P will be provided with representation by an appropriate person or IMCA (if no appropriate person forthcoming).     

Reviews, renewals and variations

An authorisation record must include a programme of regular reviews.

The authorisation can be renewed in first instance for one year and thereafter for periods of up to three years. 

A responsible body can vary an authorisation where it is reasonable to vary, there is a review in advance or soon after, and there is a consultation with P.

Mental Health Act 1983 interface

Patients detained in under Mental Health Act 1983 or who are objecting to being in hospital for Mental Health treatment cannot be made subject to authorisation under Part 7 of Schedule AA1.

However, it appears that an LPS authorisation can be provided for a patient detained pursuant to Mental Health Act 1983 in circumstances where arrangements which deprive a patient of their liberty is to provide physical intervention or treatment and the patient lacks capacity to consent.

P can be subject to authorisation and subject to Mental Health Act requirements insofar as they do not conflict. (CTOs).

Author comment

Lack of statutory definition

Until the Code of Practice to the LPS is available, we await confirmation on how to apply the definition in practice and how challenges will present via the new s21A(Z) in the Court of Protection.

LPS portability – ‘passport’ 

The government intended to limit the portability, passport type approach to authorisations where a person transfers to an alternative setting. Therefore, an authorisation cannot be varied to apply to new settings once made (i.e. from supported living to care home to hospital). Clarification on this will hopefully be provided within the Code of Practice to the LPS.

Current authorisations

It remains to be seen what will happen to authorisations awaiting approval either via the Deprivation of Liberty Safeguards regime, or applications submitted under the Re:X streamlined procedure. At this time, there is no clarity and transitional information is awaited.

Next steps

We await clear direction and timeframes regarding the preparation and enactment of secondary legislation to confirm processes and procedures for the scheme, including clarification on whether statutory forms will be available.

The drafting of a Code of Practice to the LPS and Parliamentary approval of this will clarify how the LPS works in practice. A draft is due to be published for consultation, and we hope this will be within the next few months.
 
NHS bodies will be particularly keen to consider the changes in light of their new roles as responsible bodies for LPS and ensure resources are in place to manage the changes.

Watch this space for further updates, we will be providing training courses on the changes. Please contact us if you are interested, we are happy to help!

Author

This article was authored by Hannah Nicholas

With a team of over 250 lawyers, we are one of the leading firms providing legal advice and support to national and international healthcare and life sciences organisations.

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