Related Sector: Health & Social Care

The Liberty Protection Safeguards will provide protection for people aged 16 and above who are or who need to be deprived of their liberty in order to enable their care or treatment and who lack the mental capacity to consent to their arrangements.

The assessment process will be embedded into existing care planning.   Responsible bodies (hospital manager of a hospital, CCG, LA) will co-ordinate the whole assessment process from organising assessments,  reviewing and ultimately authorising the deprivation of liberty internally.  

It is anticipated that a percentage of the cases will be referred externally to an AMCP.   

As the scheme is extended to 16 and 17 year olds and to domestic settings and creates new roles for CCG’s and Trusts in authorising arrangements alongside local authorities,  there are many new opportunities for existing and new BIA’s. 

A large number of BIA’s are currently independent and not directly employed by local authorities but commissioned by them.  LPS does not exclude AMCP’s being independent either.  Although the regulations which are yet to be published could change this we think it is unlikely. 

Sue Inker, Lawyer and Subject Matter Expert in MCA, discussed the following:

  • Implementation of LPS to be delayed
  • So long, farewell, goodbye to care home managers
  • Next significant milestones for the LPS
  • What you could be doing to prepare?

Recent developments

Delay

As was discussed and anticipated in our article published on the 24th June 2020 which, if you missed it, you can read here, we commented that it was very likely that the implementation of the LPS would be delayed beyond 2020.  Subsequently, the Government announced on the 16th July 2020 that the original implementation date is postponed until April 2022.

This has granted health and social care a window of opportunity to properly prepare for the LPS.

So long, farewell, goodbye to care home managers

In published minutes of the LPS steering group meeting held on the 13th October 2020 it was revealed the Government would not be bringing in the role of the care home manager within the LPS system, so we can safely say that contentious aspect of the Act will not be implemented for now. 

Next significant milestones for the LPS

The DHSC have developed a high level time-line and the next significant milestones will be the revised impact assessment this Autumn, and the publication of a combined Code of Practice which will include the LPS Code and an updated MCA Code. In addition six sets of regulations will be produced all for consultation in Spring 2021.  

Regulations

Three of the six sets of regulations will directly relate to BIA/AMCP training, to the transitional arrangements, and to who will be able to carry out assessments.   It is anticipated that the regulations will deal with the following:

  • Eligibility criteria and statutory training needed to be an Approved Mental Capacity Professional (AMCP).
  • Required training for a conversion course for Best Interests Assessors (BIAs) under the Deprivation of Liberty Safeguards (DoLS) to become AMCPs under LPS.
  • An explanation of which bodies will deliver the required training for the AMCP role
  • Confirmation that Practicing Social workers, nurses; Speech and Language Therapists, psychologists and occupational therapists will be eligible for the AMCP role.   
  • Transitional regulations setting out the legal framework for LPS and DoLS to run alongside each other for the first year of implementation.
  • Outline of who is able to carry out assessments and determinations under LPS.

What you could be doing to prepare?

BIA/AMCP training

We do know that the new training for the AMCP role will be set out in the Regulations and we are keeping an eye on those and who will be able to deliver that training to ensure we are first to market with our university partner.

In the meantime, have you thought about training as a Best Interest Assessor now ? 

What are the benefits you ask – well here are our top 10 benefits

  • Training as a BIA promotes legal literacy around the application of the Mental Capacity Act 2005
  • Training as a BIA will create opportunities to work within CCG’s and Trusts in the AMCP role
  • Training as a BIA now will promote the culture shift necessary in your organisations to move into the LPS in 2022
  • The LPS will be integrated into care planning and training as a BIA’s will ensure you are well versed with the relevant legal principles to enable you to convert into the new system and process effortlessly
  • In the two years you now have before the LPS are implemented as a newly trained BIA you could be allocated to work through the backlog of assessments to enable a smooth transition in 2022
  • As the Department of Health and Social Care stated “it is expected that existing BIA’s will be fast tracked into the new AMCP role” and the regulations are expected to specify a reduced conversion course for existing BIAs into the new AMCP role,  training as BIA’s will enable you to move swiftly into the new AMCP role.
  • Training as a BIA will ensure you have sufficient “appropriate” knowledge for the role of the pre authorisation reviewer.
  • Training as a BIA will ensure you are competent to work through the first year transitional period when it is expected that the LPS and DOLS will run parallel
  • Qualifying as a BIA and either converting to AMCP or applying as a BIA for alternative roles under the new LPS system such as pre authorisation reviewer will assist organisations in coping with the additional workload expected by the implementation of the LPS due to its increased scope of 16/17 year olds and community cases.
  • Training as a BIA will equip you if you have designs on moving into the senior role of a signatory going forward

Our next BIA qualification (4 Days Training) will be running on the 2nd, 3rd, 4th and 5th February 2021. For more information or to book please visit our course webpage

We can also run closed courses, either face-to-face or virtually, if you have a group of colleagues who require training.

Author: Sue Inker, Lawyer and Subject Matter Expert in Mental Capacity
This article was first published on Wednesday 9th December 2020.

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Best Interest Assessor Course and Qualification

Bond Solon’s BIA qualifying course has been designed to ensure that learners gain the required skills and specialist knowledge to complete Best Interest Assessments to best practice. Find out more about this course here


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