Opinion: What Liberty Protection Safeguards mean for social workers

The UK and Welsh Government have published plans to introduce delayed Liberty Protection Safeguards (LPS), after a consultation was launched in March. Adult Social Care Practice Lead at OLM Systems, Stef Lunn, who also works as a frontline social worker in a disability transitions team, considers what it means for people in care. 

 There is certainly a lot to take in! 34 separate government documents, have been published to describe the proposed changes in England and Wales. Each document explains an aspect of the changes which will be brought about when the Mental Capacity (Amendment) Act 2019 comes into force.

Examining these proposals in the guise of a construction site manager trying to bring these plans to life, helped me to understand the plans and the principles behind them, recognise the materials and tools required, and discern the workforce needed to build and support the structure.

Using this building site analogy, I have explored how successful the proposed changes might be in protecting the human rights of people whose circumstances make them vulnerable to oppression.

Grand designs

The current Deprivation of Liberty Safeguards (DoLS) are widely considered overdue for reform. Enacted by an amendment to the Mental Capacity Act 2005, the DoLS were developed after the Bournewood Ruling highlighted the arbitrary detention of many people with cognitive impairments. This had implications for all adults being cared for ‘round the clock’ in ways they could not consent to. The DoLS system was a step towards the right to freedom of movement for people who need a high level of support.

Health and social care professionals currently involved in the delivery of the DoLS are only too familiar with the criticisms of the existing system:

• too slow with many applications waiting in the backlog
• overly bureaucratic requiring specialist oversight of all applications
• incomplete (leaving many more applications awaiting court scrutiny)
• disjointed from the rest of care planning

The current system often results in one social worker supporting a person to move into a care home, only for another social worker to arrive several weeks or months later questioning the support provided by their own department. Furthermore, since the original act in 2005, mental capacity practice has advanced leaving aspects of the existing Code of Practice feeling outdated alongside a widely discredited DoLS system.

A sound blueprint

The 2019 Act was accordingly well received, offering to inject efficiencies into the system by ensuring that all restrictions are properly considered as part of mainstream care planning. The draft code and regulations also seem to support a pragmatic ‘blueprint’ for updating mental capacity practice, including the fulfilment of LPS.

Firm foundations

The Mental Capacity Act principles are sound. The principles of the Mental Capacity Act itself remain popular. According to the House of Lords post legislative scrutiny select committee in 2015“The Mental Capacity Act was a visionary piece of legislation for its time, which marked a turning point”. Government has wisely taken the opportunity to revise the existing Code of Practice to reflect developments in the 17 years since its publication. Incorporating LPS as part of this update secures its place in the wider context of the 5 guiding principles of the act.

Sound materials

The building blocks laid out in the consultation are thorough and, for the most part, clear. The comprehensive guidance is now subject to an extended consultation period. Efforts are being made to engage people, with Welsh government’s high quality easy read and video guidance manifesting this commitment. The guidance and regulations provide detailed direction for our ‘site managers’ planning the delivery of the new system.

There are aspects to be clarified or strengthened. Our own response to the consultation proposes changes to the scenarios illustrating where a deprivation may or may not be taking place. We also suggest the publication of template information for members of the public, this would reduce the duplication of similar efforts across public organisations. The consultation process will doubtless offer further improvements. As always, Local teams must continue to think creatively about how to serve their local communities, but, by and large, the necessary materials have been provided.

Supportive scaffolding

The national training strategy is helpful. Whatever the eventual detail of LPS, successful implementation will rely on people. A great deal of planning is needed to offer the training, local guidance and support required. This will be essential in enabling professionals and other care staff to engage with people using care services and their families. Having proposed the specific training aims for different staff groups, the national team has offered a great starting point. The learning outcomes identified are lengthy, but they certainly offer a great supporting structure for local training leads.

Depleted workforce

We don’t have the builders! The shortage of workers is well documented. From hands on support workers to senior managers and everything in between, there are high vacancy rates across the sector. This results in high workloads and an increased risk of unsafe working practices. LPS will be no exception, the proposed 21 day timescale will be routinely missed, leaving people at continued risk of unlawful deprivation. For some, the restrictions on their freedoms will simply not be identified; others will face long delays before constraints are reviewed. Care planning under the Care Act is conspicuously without timescales, some people wait months for plans or reviews to be completed. Whilst the plan to embed LPS within Care Act processes is sensible, adding pressures to an already overburdened system will simply add to the backlog.

Realising the vision

Despite the best laid plans, firm foundations, decent materials and excellent scaffolding, there is a real risk that the aims of this ambitious project may remain unfinished because we ‘can’t get the builders’.  Many people will remain unlawfully deprived for lengthy periods. This may be more acute in England, where the new care costs cap will further increase demand on statutory services. The legacy of previous delays and the continued absences of a timeline for the new safeguards only add to an overwhelming sense that this much needed change is unattainable in the current circumstances.

Photo by Ümit Bulut