BASW responds to decision to delay introduction of liberty protection safeguards

In a letter addressed to stakeholders, the UK Government confirmed that it would be delaying the implementation of the LPS “beyond the life of this Parliament", in the wake of the release of its plans for adult social care “Next steps to put People at the Heart of Care” on 4 April 2023. The next UK general election must be held by January 2025 at the latest.

It is not currently clear what this means for the publication of the revised Mental Capacity Act (MCA) Code of Practice, which integrated chapters on the new LPS. The draft Code was consulted upon last year. BASW is calling upon the Government to publish the revised MCA Code of Practice at the earliest opportunity to ensure good practice across health and social care and reaffirm the Department of Health and Social Care’s (DHSC) commitment to this area of practice. This commitment will be in question following the announcement on LPS. It is also important that the Department for Education (DfE) be engaged in launching the revised code to reinforce its importance as it relates to 16 and 17 year olds.

As the sector will be continuing to use Deprivation of Liberty Safeguards (DoLS) for the immediate future, BASW is calling upon the DHSC to listen to the sector and make improvements to the current scheme, based on the changes that would have been introduced with the LPS. The funding that was earmarked for the implementation of LPS should also be made available to the sector in order to refresh the application of the MCA across health and social care. Access toBest Interest Assessor refresher training, which has not been readily available whilst awaiting news on the timetable for implementing the LPS, needs to be prioritised

BASW is also asking DHSC to work with their colleagues across Government to remedy the existing injustice regarding non-means tested legal aid for challenges to DoLS authorisations. DHSC needs to work with colleagues across Government to remedy the injustice whereby challenges to DOLS authorisations attract non-means tested legal aid whereas other challenges do not, for example where someone is awaiting a standard authorisation and an urgent authorisation has run out.

The introduction of LPS was designed to address many of the challenges arising from the DoLS process. Many BASW members, professional colleagues and experts by experience devoted their time, energy and expertise to responding to last year’s consultation and earlier in the process when the Mental Capacity (Amendment) Act was progressing through Parliament. Delaying the introduction of the LPS creates ongoing uncertainty in the sector and fails to address existing problems and challenges with DoLS. BASW is therefore calling upon DHSC to clarify as a matter of urgency what this means for the revised Code of Practice and how the Government will seek to improve and resource DoLS in the immediate future with a clear focus on promoting and upholding human rights.