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Liberty Protection Safeguards: VoiceAbility submits the advocacy sector’s joint consultation response

18 July 2022

VoiceAbility has submitted a joint response to the Department of Health and Social Care (DHSC) as part of their consultation into changes to the Mental Capacity Act Code of Practice and how the Liberty Protection Safeguards (LPS) will work when implemented. 

Since the launch of the consultation, VoiceAbility has been working with others to formulate a comprehensive joint response and we’ve been leading engagement with DHSC on key themes that have emerged in discussions on the Code of Practice.

To find out more about what LPS is, and some of the changes that LPS will introduce, read our earlier update about LPS when the consultation was published.

What did we say?

Our full consultation response is available below, but here is an overview of the key points we made in our submission.

Definition of a deprivation of liberty

We echoed concerns that have been shared by many others that there needs to be a substantial review and reconsideration of the definitions of a deprivation of liberty, and the guidance of how to apply the definition, in particular the example scenarios that are provided. 

We strongly recommended that there is a frank and open dialogue and a co-production approach to getting this chapter right, given how fundamental it is to the overall successful and smooth implementation of LPS.

Funding and resources for implementation

Advocacy is an essential ingredient to LPS and the Mental Capacity Act’s implementation. 

It’s envisaged that there will be a significant increase in the number of advocates, to make sure that LPS is person-centred and upholds people’s rights when their liberty is being restricted. We support the recognition that advocacy is being given, and would welcome ongoing conversations about further details around implementation, in particular in relation to supporting and funding the recruitment and training of existing and new advocates. 

In particular, advocacy providers require targeted and specific resources, including funding, to recruit, train and manage the many thousands of newly-recruited advocates, and to support the transition of systems and people for the implementation of LPS. 

Multi-skilled advocates and long-term support

We welcome the reference to an advocate having a long-term relationship with the person, and a preference for advocates to be multi-skilled so they can support people who also access support under the Care Act and Mental Health Act. 

The importance and value of this to the person could be strengthened in the Code, and the benefits outlined. For example: more person-centred support with better knowledge of the person’s wishes and deeper insights into how restrictions impact on the person and their life; stronger relationships with the person who is enabled to get to know and trust their advocate; and deeper understanding of how the person communicates. This also can lead to better safeguarding and understanding of fluctuating capacity, particularly when restrictions are extended or when people move locations. 

The interplay with the Care Act and Mental Health Act could be made clearer in places and emphasised, particularly in Chapter 10 that sets out the role of advocates.

Unique role and independence of advocates

In parts of the Code, there are references to the role of advocates which do not align with the principles of advocacy or the role that advocates play. 

Advocates are independent of Responsible Bodies and care providers. They are there to be on the side of the person they are supporting, to make sure they are heard, their wishes are taken into account, and their rights are upheld. 

Advocates do not have a role in mediation, negotiation, or conflict resolution. 

Advocates do not take a view or express opinion on what a person should or should not do. 

They should not have a role in supporting the Responsible Body achieving any particular objective or decisions they have set out for the person they are supporting. 

Appropriate Persons: a new and serious role

The role of the Appropriate Person is a serious undertaking, and must be considered as such by the person carrying out the role and by the Responsible Body. 

In general, the Code reflects reasonably the seriousness of the role and the burden of the requirements of the role. Where there are mentions of volunteers taking up the role of Appropriate Person, even where there has been an attempt to provide clarity on when such a scenario might arise, we find that this is unclear and unhelpful and will inevitably lead to confusion and misinterpretation. References to volunteers” carrying out the role should be removed, as when referring to volunteers in these places, the Code then explains that the rationale for their appointment as an Appropriate Person would in fact be their friendship with the person and their volunteer role is a misleading reference. Primacy must always be given to the requirement that the Appropriate Person knows the person well.

In reviewing the draft Code, we identify particular gaps which could risk people’s rights and safeguarding if not resolved appropriately. This stems from the way IMCA support for the Appropriate Person is set out in the draft Code. The IMCA role is set out to support the Appropriate Person only and not to support the person, as is the current context of RPR. If there is an Appropriate Person, under the draft Code, the IMCA has no direct role in person-centred support for the person subject to a deprivation of liberty. They also have no right to meet with that person or speak with that person. This could be resolved by making sure the overriding obligation for an IMCA is to make sure the person is supported, through appropriate advocacy practice, rather than only supporting the Appropriate Person in their role.

There are limited safeguards and processes under the draft Code established to safeguard the person and ensure the Appropriate Person, once appointed, fulfils their duties as required, and continues to fulfil their duties during any ongoing authorisation. Under the Code as proposed, if the Appropriate Person is not deemed to need” IMCA support by the Responsible Body then they can choose to have support or not. Should they choose not to access IMCA support, there are limited safeguards to make sure they are properly fulfilling the role, and challenging where it might be necessary to ensure someone’s rights. 

While it’s clear that it’s the Responsible Body’s duty to make sure the person is appropriate, additional guidance and clear expectations of how they should undertake such monitoring to fulfil that duty would be very helpful to address some of the gap we raise as a concern.

Section 4B and emergency provisions

We are concerned about the application of the emergency provisions of Section 4B, and monitoring to ensure that it is not applied in an arbitrary manner or as a means to avoid the appropriate advocacy and LPS process. 

We recommend that in the monitoring of LPS, the application of 4B by Responsible Bodies is also monitored. Statistics should be made publicly available to map trends should a particular Responsible Body appear to use it more frequently than might be expected without due cause. 

We also recommend there are restrictions in place around timescales for the use of 4B so that people are safeguarded appropriately.

Approved Mental Capacity Practitioners

In relation to the role of the Approved Mental Capacity Practitioner, we agree with the proposal set out in the code that this be managed by local authorities and would propose this is included as a firm recommendation in the Code. Local authorities are already well-placed to understand the wider definition of capacity outside a clinical setting. We should avoid using an overly clinical model of assessing and understanding capacity, particularly in light of fluctuating capacity or differences in capacity in relation to different decisions. We believe local authorities will be better able to manage that assessment process than clinical institutions such as NHS bodies.

What next?

The government have not announced an implementation date yet, and have said they want to make sure they have time to respond to the feedback the consultation provides. The government have indicated that they plan to put the necessary legislation before parliament this winter, and this means that implementation of LPS may be in 2023. 

VoiceAbility is a member of DHSC’s LPS national steering group, and will continue to work with DHSC to support it work towards implementation and to push for resolution of concerns we raised in our consultation response. 

Get in touch

If you want to talk to VoiceAbility about our work on LPS, email publicaffairs@voiceability.org.