NYAS (National Youth Advocacy Service) has responded to two consultations on the LPS (Liberty Protection Safeguards) regulations. The LPS regulations will be extended across England and Wales, including for the first time to young people aged 16 and over.

You can find our England and Wales consultation here and our Wales-only consultation here.

What is the Liberty Protection Safeguards?

An LPS authorisation is put in place to protect someone aged 16 or over who is, or needs to be, deprived of their liberty to receive treatment, or lacks the capacity to consent to their arrangements themselves. In all cases, depriving someone of their liberty should only take place as a last resort.

It is hoped that the extension of the LPS scheme to 16 and 17-year-olds will reduce the potential distress of young people and their families. Under the current Deprivation of Liberty Safeguards, which the long-awaited LPS scheme will be replacing, 16- and 17-year-olds must currently apply to the Court of Protection to have their deprivation of liberty application authorised.

A new date for the implementation of the LPS still has not been set by the Department of Health and Social Care after multiple delays.

 

What was NYAS' Response to the Liberty Protection Safeguards?

There are three central themes that make up our response to the LPS consultations:

  • An Independent Mental Capacity Advocate and an Appropriate Person should both support a cared-for person

  • Non-instructed advocacy should be expanded upon within the LPS

  • A Children’s Rights Impact Assessment (CRIA) should be carried out by the UK Government

An Independent Mental Capacity Advocate and an Appropriate Person should both support a cared-for person

NYAS’ central call is that an Independent Mental Capacity Advocate (IMCA) and Appropriate Person should both be available to support a cared-for person on every LPS authorisation.

An IMCA is a fully trained, professional advocate appointed to act on the behalf of individuals who lack capacity to make certain decisions. The IMCA is a paid role in the LPS unlike the role of an Appropriate Person, which is a volunteer, non-professional role. An Appropriate Person could be a family member, friend, or someone who knows the person well. Their role, as specified in the LPS Code of Practice, is “to support a cared-for person’s active involvement in the LPS process and represent the person, and their wishes and feelings, to ensure their human rights are protected”.

The LPS impact assessment predicts that in only 66% of cases, an Appropriate Person will be supported by an advocate to carry out their role in supporting a cared-for person, which is nothing short of a cost-cutting exercise. NYAS believes that all Appropriate Persons should be supported by an IMCA, so that all cared-for people should have both a non-professional as well as a professional speaking up for their rights. This will make sure that they receive the best support possible.

 

Non-instructed advocacy should be expanded upon within the LPS

Non-instructed advocacy is different from traditional best interests advocacy, in that the advocate does not offer their own opinions as to what they think is best for the patient. Instead, a non-instructed advocate will work to find out the person who lacks mental capacity’s preferred way to communicate so they can uphold their rights.

This type of advocacy is fundamental to the vital functions IMCAs carry out. However, NYAS believes in the LPS guidance, the importance of non-instructed advocacy was not given the due weight it deserves and should be clarified within guidance and legislation.

A Children’s Rights Impact Assessment (CRIA) should be carried out by the UK Government

As the Welsh Measure requires policy in Wales to have due regard to the rights contained within the United Nations Convention on the Rights of the Child, a Children’s Rights Impact Assessment (CRIA) was created by Welsh Government for their implementation of the LPS. The CRIA created by Welsh Government assessed the potential impacts of the LPS regulations on children’s rights across Wales.

To demonstrate that UK Government is serious about upholding children’s rights under the LPS, NYAS believes it should go above and beyond its existing statutory responsibilities by drafting a CRIA to assess the potential impacts of the LPS regulations on children’s rights across England.

As a leading advocacy organisation, NYAS has set forth our wish to be consulted on several elements of the LPS still to be finalised. We look forward to engaging with the LPS post-consultation to make sure the rights of young people are upheld.

Want to find out more about mental capacity law and policy?

Mental Capacity Law and Policy 39 Essex Chambers