Guarantees to protect freedom will certainly be delayed, but no word on a new timetable

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The Safeguarding Guarantees (LPS) will certainly be delayed again as the government has yet to consult on how to put the program into practice.

The Deprivation of Liberty Protective Measures (DoLS) replacement was originally scheduled to come into effect in October 2020, but was later pushed back to an April 2022 target, due to Covid’s impact on healthcare and social services.

The primary legislation that underlies the LPS was passed in 2019, but its implementation requires the adoption of regulations by Parliament and the development of a code of conduct, detailing how the regime will be implemented. convenient.

For this to happen, ministers would need to conduct a 12-week consultation on the draft code and regulation, review and respond to it, draft the final code, and table the regulation in Parliament. Regulations can then take up to 40 days to become law.

With less than four months of April 2022, this is impossible as an implementation date. However, the government has yet to confirm that it will have to delay the LPS again. As recently as June of this year (see timeline below), he called consultation on the draft code and regulation “coming soon”.

As a result, councils and other sector bodies had to continue preparing, to the extent possible, for the April implementation without all the details of how the system would work and alongside their other responsibilities, in the context of Covid.

Social work leaders told Community Care this caused significant challenges for practitioners and managers.

“Incredibly frustrating and difficult”

“We are in an incredibly frustrating and difficult position,” said Lorraine Currie, chair of the DoLS National Leaders Group.

“We were given a realistic expectation of consultation. The timeline still exists, it is unchanged. Spring to summer consultation – it’s winter now. We are far from the timeline.

She said the councils and other relevant organizations needed an announcement saying “please don’t do anything on LPS until we give you the go ahead.”

“That would be great – so we don’t need to put in the time, money, staff,” she said. “Until we get that, we have to continue as if it is April 2022.”

Currie added, “I don’t understand why they can’t give us direction – something that gives us a clue in a sense that the end is in sight. When will a reasonable expectation of consultation occur or not? “

Claire Webster, Acting Services Manager for the North Yorkshire Council MCA / DoLS team, said: “Many MCA / DoLS managers are feeling frustrated. It takes a lot of resources to plan any kind of change.

Wasted resource

Jenefer Rees, chair of the Adult Principal Social Worker Network, said the delay wasted resources.

“This delay certainly causes a lot of uncertainty and in fact results in a waste of time and resources in terms of planning and collaboration between the different partners,” she added. “It is very difficult to maintain focus and momentum with change when the deadlines and deadlines continue to be delayed. “

Currie said, “Boards invest. Half of the West Midlands councils have planned their operational structures. Technically, [April’s] next year’s budget – so are we committing a budget or not? And then there is the IMCA [independent mental capacity advocate] arrangement. We know the IMCA will be wider and longer under LPS. Our current IMCA contract is coming to an end, but we don’t know what we are offering. Don’t we bid and risk the supply collapsing? “

What LPS means to you

The LPS establishes an authorization process for devices allowing care or treatment which entail deprivation of liberty within the meaning of Article 5, paragraph 1, of the European Convention on Human Rights (ECHR), when the person does not have the capacity to consent to the provisions. It also provides for guarantees to be provided to persons subject to the scheme.

While DoLS only applies to hospitals and nursing homes, LPS can be used in other contexts, for example assisted living, shared living, and private and household settings. While the DoLS applies to persons aged 18 and over, the LPS applies to persons aged 16 and over.

The “responsible body”, which replaces the “oversight body” under DoLS, may authorize arrangements if the person does not have the capacity to consent, suffers from a mental disorder within the meaning of Article 1 (2) of the Mental Health Act and that the arrangements are necessary to avoid harm to the person and proportionate to the likelihood and severity of the harm. For more information, read lawyer Tim Spencer-Lane’s guide on how the law will change under LPS.

Currie said the uncertainty is also leading the boards to halt development work on DoLS.

DoLS development work has stalled

“There could be changes to the [DoLS] forms that we could do, there could be changes in process and practice, ”she said. “But you’re embarrassed because we’ve got LPS coming in.”

Referring to the massive backlog in DoLS cases – the legacy of the 2014 Cheshire West judgment that lowered the threshold for deprivation of liberty – she said: “It is very difficult to do anything to deal with it. arrears because you don’t know how long the gap is. If it’s a three-year gap, we can focus our energies on DoLS, perhaps by taking some of the LPS learning and applying it within the framework we have now.

“But because technically we’re thinking of April – it’s literally Christmas, then April. Those of us who still have to do this as a day job are spending a lot of money and time preparing for LPS.

Webster said the government needed to allow plenty of preparation time once it released the draft code and regulations, not only to help sector bodies but also for public engagement.

“The biggest change [from DoLS] is that these provisions will apply to any other framework …[including] people in their own homes, I don’t know how well they understand that. There is a lot of public engagement that needs to happen that we cannot do without this information to reassure that when it does arrive it is about providing guarantees rather than placing restrictions on people. “

Importance of code for understanding

She said the code of practice, which will encompass the broader Mental Capacity Act as well as the LPS, would be essential in helping boards and other bodies understand how the LPS should be implemented.

For example, the PAA replaces the concept of a person opposing the arrangements with a reasonable belief that the person does not want to reside or receive care in a particular location. In such cases, a licensed mental capacity professional – a new role created under the scheme that could be performed primarily by social workers – would be appointed to review cases prior to authorization.

“So that would be something that would be very helpful to know about what would be considered important enough for an AMCP to get involved,” said Webster.

She added: “There are a lot of rumors about when it could be postponed, such as fall of next year. It is not yet much time for the major change he is proposing. You absolutely need a decent amount of time between releasing these codes to have the really important conversations to have the manpower and planning in place to implement it properly. You need as much preparation time as possible. The more time they can volunteer, the better – the bottom line is that they can let us know about delays early, the better.

Rees added, “I am very confident that once the code of practice and the implementation schedule are clearer, this will be done with professionalism and with a clear focus on the rights and well-being of people. people who need support. in this way.”

“Fight to see how April 2022 is possible”

Advocacy provider VoiceAbility said it welcomes the expansion of IMCA’s role under the LPS, but a new timeline is needed.

Charlotte Gill, Director of Policy, Public Affairs and Marketing, said: “The decision to deprive someone of their liberty is a serious one and the safeguards to protect liberty are complex. do this.

“We are eagerly awaiting the consultation process, but we are struggling to see how an implementation target from April 2022 will be possible. We encourage the government to review and update the timeline so that advocacy providers and local authorities are able to ensure that the LPS is successfully deployed from day one.

A spokesperson for the Ministry of Health and Social Affairs said: “We are focused on the successful implementation of the safeguards to protect liberty, working to make the process simpler, more streamlined and put individuals in control. heart of the decision-making process.

“We will continue to work with the sector taking into account all comments received from the public consultation. Our implementation plans will be released in due course.

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