Find out what the impact of this is, the proposed new date and why a consultation will now take place.
A bit of background
The Deprivation of Liberty Safeguards (DoLS) came into law in 2009, to protect the rights of people in care homes or hospitals who are deprived of their liberty and are not given the care or treatment they need.
They protect people’s rights by creating a clear system for authorising very restrictive care plans and provide a way for users of services to challenge deprivation of liberty in court.
The LPS system is a scheme set up by an amendment to the Mental Capacity Act (MCA) 2005, that will that will replace DoLS, and hopefully create a simpler and faster process for its users.
The LPS system was initially due to come into force on 1 October 2020, but this has been delayed to April 2022. However, some provisions, covering new roles and training, will come into force ahead of this new date.
The latest timescales
The government has stated that further work needs to be carried out before the LPS can come into force, including the publication of a Code of Practice and regulations.
It was announced last week that these consultations will take place in spring 2021, and that the intention is to combine the new LPS Code of Practice with an updated Mental Capacity Act Code of Practice. The consultation process will run for 12 weeks, allowing sufficient time for those affected, including those with learning disabilities, to engage properly.
The government’s response to the consultation is to be published in the autumn of 2021, with the final Code of Practice to be published in the winter. These timescales may of course be subject to change.
We are continuing to monitor the implementation of the new framework closely, as well as the COVID-19 regulations and the lawfulness of the deprivation of liberty of vulnerable adults. Importantly, as the LPS is not being implemented for some time, public authorities and professionals working in the relevant fields need to ensure that they continue to comply with the existing DoLS regime and the Mental Capacity Act 2005.
This requirement was reinforced by Mr Justice Hayden in a letter to the Directors of Adult Social Services in May 2020, in which he stressed the importance of the statutory requirements, and the need to properly authorise any deprivation of liberty in accordance with existing law.
Mr Justice Hayden stated: “The deprivation of the liberty of any individual in a democratic society, holding fast to the rule of law, will always require appropriate authorisation. Nothing has changed. The Mental Capacity Act 2005, the Court of Protection Rules and the fundamental rights and freedoms which underpin them are indispensable safeguards to the frail and vulnerable.”
Updates will continue
Our Public Law team will continue to monitor any updates on this key piece of legislation and if there is a change, we’ll share our expertise and insight with you.
We will also be offering LPS training courses for advocates in early 2022 - look out for more details on this next year.
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