Liberty Protection Safeguards delayed “beyond the life of this Parliament”

The Government announced on 5 April 2023 that it had taken the “difficult decision to delay the implementation of the Liberty Protection Safeguards beyond the life of this Parliament” as part of its wider plans to reform and improve adult social care set out in its paper “Next Steps to put People at the Heart of Care”.

In practical terms, this means that a decision on whether or when to implement the LPS will not be taken until after the formation of a new government. A date for the general election has not yet been set but, unless called earlier, it may be as late as January 2025. Realistically, LPS is not likely to be implemented (either in its current form or at all) until 2026 at the earliest.

We appreciate this update will be disappointing for all health and social care providers who have been working on plans for implementation since the Mental Capacity (Amendment) Bill was passed in May 2019. However, the work undertaken to identify those requiring authorisation of a deprivation of liberty will undoubtedly be of value moving forwards.

In terms of next steps, health and social care bodies including Integrated Care Boards, NHS Trusts, and social care providers should:

• continue to recognise that a deprivation of liberty is an incredibly serious matter and, in the absence of the implementation of the Liberty Protection Safeguards, appropriate steps must be taken to authorise any deprivation of liberty utilising the current legal framework
• ensure that your organisation refreshes its knowledge of the Mental Capacity Act 2005, the applicability and use of the Deprivation of Liberty Safeguards and applications for court authorised deprivations of liberty
• revisit and refresh policies pertaining to the current framework which, understandably, may have previously been considered to be nearing “end of life”

We understand that, notwithstanding the “delay”, the Government still intends to publish a summary of responses to its consultation on the LPS, which closed in July 2022. There has been no indication of when we can expect that summary, nor any further announcements or guidance from the Government at this stage. We continue to watch and wait.

If you require any advice, guidance or training in relation to the Mental Capacity Act 2005 and its application, including DOLS and/or LPS, please contact our specialist team for more information.