Liberty Protection Safeguards

360 Assurance provides internal audit and independent assurance to NHS organisations across the East Midlands and South Yorkshire. In 2021/22 we are undertaking a specific project to support our clients’ preparation for implementing the Liberty Protection Safeguards.

In partnership with Hill Dickinson Solicitors we ran a webinar on 7 July – slides and the video can be found below.

Slides from webinar with Hill Dickinson on 7 July 2021

Link to video of the Liberty Protection Safeguards Webinar with Hill Dickinson (YouTube)

Background

In May 2019 the Mental Capacity (Amendment) Act 2019 (https://www.legislation.gov.uk/ukpga/2019/18/enacted) became statutory legislation. At this point it was intended that it would come into force on 1 October 2020. In July 2020 it was announced that the timeframe for implementation would be delayed.

Current position

The new safeguards are set to come into force on 1 April 2022, although there is increasing speculation that this date will slip further. Until a further delay is formally confirmed, organisations are advised to continue to prepare for an April 2022 implementation.

The draft Code of Practice and Regulations are expected ‘imminently’. Once these are published there is likely to be a flurry of activity, but it is worth remembering that these documents are for consultation. Therefore, they should be used to further inform planning and preparation for implementation but are not set in stone.

The Department of Health and Social Care has published several ‘factsheets’ (https://www.gov.uk/government/publications/liberty-protection-safeguards-factsheets) (all updated on 11 June 2021) and on 25 June also announced two implementation support programmes had been agreed in Local Government and Social Care, with a third planned or the NHS in due course (https://www.gov.uk/government/publications/liberty-protection-safeguards-implementation-support).

What 360 Assurance are doing

We have a few days within each of our clients’ internal audit plans for 2021/22 allocated to a client-wide piece of work focused on Liberty Protection Safeguards. By pooling this time, we are able to dedicate a significant amount of resource to undertaking pieces of work that will benefit all of our clients and also (hopefully) the wider NHS and health and social care sector.

The first piece of work we are undertaking is documenting the current position of individual NHS organisations and ICSs in respect of:

  • Current numbers of DoLS and Court of Protection applications (under Re X or for 16/17 year olds)
  • Current numbers of BIAs
  • Where DoLS currently sits within the organisational structure (eg within safeguarding teams or mental health legislation teams)
  • Expected numbers of LPS applications
  • Expected numbers requiring AMCP pre-authorisation review
  • Likely WTE AMCPs required (using Government Impact Assessment estimates)
  • Expectations around who will ‘authorise’ applications
  • Likely WTE authorisers required

in order to report this back in a way that enables early benchmarking and sharing of ideas and possible solutions. It is likely that this report will go through several iterations as things progress and evolve rapidly.

Versions of this report will be available from this page.

The second piece of work will be, through working in conjunction with NHSE, regional groups and leads, helping to plug any gaps in terms of resources that organisations may need to prevent everyone committing time and resources to reinventing multiple wheels.

This might include: data analysis of projected numbers at system level, development of a spreadsheet for capturing LPS information at an organisational level (in order to effortlessly submit central information requirements), production of short (10 min) training videos on mental capacity, production of an assessment workbook, sharing template policies and flowcharts, developing audit tools for internal assurance, producing information leaflets for patients/families/representatives. We are happy to take suggestions on what is likely to be most useful that is not already being developed and delivered centrally and made freely available to the NHS.