Do not prioritise the LPS but refocus on the MCA

Related Sector: Health & Social Care

As we discussed in our article last week which, if you missed, you can read here, we commented that it was very likely that the implementation of the LPS will be delayed beyond October 2020.

Although we are still waiting for the formal announcement from government,  councils and other relevant sector bodies have been told “not to prioritise implementing the Liberty Protection Safeguards”. This will mean the commencement date of October 2020 is now unworkable. The Government have not given an alternative date but have said that they will provide “further updates as soon as possible”.

As the Government are yet to fully consult on the draft Code and have not published Regulations, the delay was inevitable.

With responsibility for implementing the LPS falling squarely on the shoulders of Local Authorities, NHS Trusts and CCG’s, it goes without saying that, having to cope with COVID-19 and the threat of a potential second wave looming large with the relaxation of the public health restrictions, they may not have their attention fully focused on this issue, even if it is on their risk register.  We guess some may even feel a huge sense of relief.

A Department of Health and Social Care spokesperson said: “We are aware of the pressures the pandemic is putting on the health and social care sector and are not asking the sector to prioritise LPS preparation during this time.”

What does this mean for professionals?

The Mental Capacity Act 2005 is still primary legislation and has not changed. The Coronavirus Act 2020 does not change any of the obligations imposed under it. There have been no easements nor any amendments to the Act. MCA is still core-business.

The issues coming up during and because of the pandemic just apply in a different context, but the MCA works on top. Professionals need to be alive to the unique questions now posed by the pandemic such as testing for COVID-19, social distancing issues, contact with others and how to use new and innovative ways to assess capacity and work with people who may lack the capacity to make the relevant decisions during the pandemic.

Author: Sue Inker, Lawyer and Subject Matter Expert in Mental Capaity
This article was first published on 24th June 2020

 

MCA during Covid-19
We are delivering a one-day interactive virtual course on the Mental Capacity Act 2005 to help health and social care professionals, social workers, BIAs, RPRs, IMCAs and others think through mental capacity and deprivation of liberty safeguards and the implications of the COVID-19 pandemic in practice. Find out more about this course here

DoLS/BIA Legal Literacy
This one-day interactive virtual course is aimed at ensuring that those operating under the Mental Capacity Act Deprivation of Liberty Safeguards are able to do so lawfully. Find out more about this course here

BIA Qualification
With the implementation of the LPS likely to be implemented late 2021 (see article above), it is highly recommended that you train your workforce to become BIAs. This will give them the legal understanding around a deprivation of liberty, and also put them ahead of the game to fast track into the new roles when the LPS finally does come in. Find out more about the course here