Closed consultation

LPS implementation: draft impact equalities assessment

Updated 21 June 2022

Applies to England and Wales

Introduction

This document examines the potential equality impact of the Liberty Protection Safeguards (LPS), as introduced by the Mental Capacity (Amendment) Act 2019 (MC(A)A). It is published by and on behalf of the Department for Health and Social Care (DHSC).

In December 2018, we published an analysis of the potential equality impact of the, then, Mental Capacity (Amendment) Bill. This newer document provides an update on that analysis of the bill. Figures have been updated using the most recent data available. This document assesses the potential equality impact of the design of LPS overall – including the MC(A)A, relevant regulations and the updated Mental Capacity Act 2005 (MCA) Code of Practice (‘the Code’) which includes statutory guidance on the LPS. The draft regulations and the Code were published for public consultation in 2021. This document assesses those drafts. We will continue to assess the potential equality impact of LPS as the government takes final decisions about the design and implementation of LPS, after public consultation.

The MC(A)A amended the MCA to replace the Deprivation of Liberty Safeguards (DoLS) scheme with the LPS. Once implemented, the LPS will be the system that authorises arrangements amounting to a deprivation of liberty in order to provide care or treatment to an individual who lacks the relevant mental capacity to consent to those arrangements, in England and Wales.

The fundamental nature of the MCA is that it applies to those who lack capacity to make decisions: we recognise that because of this, those with a disability, and who are older, will be impacted more than others.

Equality analysis is an important component of the policy decision-making process because it helps to identify the likely positive and negative impacts that policy proposals may have on certain protected and disadvantaged groups, providing an opportunity to mitigate any negative impacts and advance equalities. This analysis also contributes to fulfilling DHSC’s obligations under the Public Sector Equality Duty (PSED).

If you have any questions or queries about this analysis, please contact: lps.cop@dhsc.gov.uk.

Public Sector Equality Duty

Under the Equality Act 2010, the DHSC, as a public authority, is legally obliged to give due regard to equality issues when making policy decisions – this is known as the PSED. The department and government ministers must have due regard to the need to:

• eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act
• advance equality of opportunity between people who share a protected characteristic and those who do not
• foster good relations between people who share a protected characteristic and those who do not

Advancing equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard to the need to:

• remove or minimise disadvantages suffered by persons with protected characteristics
• take steps to meet the needs of persons who share a relevant protected characteristic
• encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low

Fostering good relations between people who share a protected characteristic and those who do not includes, for example, tackling prejudice and promoting understanding.

The PSED covers the following protected characteristics: age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

This equality analysis assesses the expected impacts of the LPS on those individuals with protected characteristics, in England and Wales. The analysis also assesses the expected impacts on other affected or disadvantaged groups, in England and Wales.

In respect of England, this document considers issues relevant to the Secretary of State for Health and Social Care’s duty to have regard to the need to reduce health inequalities under the National Health Service Act 2006, and the Family Test.

As the PSED is an ongoing duty, we will continue to give due regard to equality issues as LPS is implemented and is in place, and update documentation as appropriate.

Policy aims and objectives

Background to the LPS

Article 5 of the European Convention on Human Rights (ECHR) guarantees the right to liberty and provides that no one should be deprived of their liberty on an arbitrary basis. Any deprivation of liberty must be carried out in accordance with a procedure proscribed by law and proper safeguards must be delivered.

A European Court of Human Rights judgment in 2004 – HL v United Kingdom – found that the English and Welsh legal system did not adequately protect people who lacked capacity to consent to their care and treatment arrangements as demanded by the right to liberty (Article 5).

The DoLS was consequently introduced and came into force in 2009 through the introduction of new provisions added to the MCA by the Mental Health Act 2007. They intended to ensure that where a person is being assessed for or under arrangements that amount to a deprivation of liberty in hospitals or care homes, and they are unable to consent to those arrangements, they have access to the necessary safeguards.

In March 2014, the Supreme Court set out the ‘acid test’ for the meaning of an objective deprivation of liberty via the decision known as ‘Cheshire West’^{[footnote 1]}. This states that an individual who lacks the capacity to consent to the arrangements for their care and treatment is objectively deprived of their liberty if they are:

1. subject to continuous supervision and control
2. not free to leave

Since the judgment, the DoLS regime has struggled to cope with the increased number of cases:

• In 2013 to 2014 (prior to Cheshire West) total number of DoLS application in England was 13,715
• In 2019 to 2020 (post Cheshire West) total number of DoLS applications in England increased to 263,940

The number of applications has increased by an average of 13.9% each year since 2014 to 2015.

(Figures: MCA DoLS 2019 to 2020 report. NHS Digital)^{[footnote 2]}.

These figures do not include people who are deprived of liberty in settings not covered by the DoLS (for example, supported living, shared lives and private and domestic settings) where the only available mechanism to provide Article 5 safeguards is via authorisation by the Court of Protection (estimated at around 53,000^{[footnote 3]}). These figures also do not include younger people (16 and 17 year olds) deprived of their liberty. Following the Re D Supreme Court ruling that parental consent cannot authorise what would otherwise be deprivation of liberty of a 16 or 17 year old, it is estimated that 6,600 16 and 17 year olds will need an authorisation each year.

The current system is unable to cope with the increased number of people requiring their deprivation of liberty to be authorised. The number of applications that have not been completed means many of individuals are left without safeguards for an extended period. This number currently stands at 129,780 (MCA DoLS 2019 to 2020 report. NHS Digital).

A House of Lords Select Committee was established in 2013 to conduct post-legislative scrutiny of the MCA. The Committee’s 2014 report found that the DoLS were “bureaucratic” and “too complex” and that the safeguards were frequently not used at all. The Law Commission subsequently reviewed the DoLS in its report ‘Mental Capacity and Deprivation of Liberty’^{[footnote 4]}. It recommended that the system should be repealed and replaced as a matter of “pressing urgency”.

The government’s response to the Law Commission report was published in March 2018. The LPS were consequently introduced by the MC(A)A, in 2019.

Summary of the LPS

The LPS will replace the DoLS as the system that authorises arrangements amounting to a deprivation of liberty in order to provide care or treatment to an individual who lacks the relevant mental capacity to consent to those arrangements, in England and Wales. Though the LPS has the same overall purpose as the DoLS, the new system is different by design in a number of ways.

The new system will be more streamlined and will put the person at the centre of the decision-making process. The LPS will introduce an explicit duty to consult with the person, and those interested in their welfare, to establish the person’s wishes and feelings about proposed arrangements. Those who are close to the person will also be able to provide representation and support to them via a new ‘Appropriate Person’ role. People can also be represented and supported and afforded their rights throughout the process by an Independent Mental Capacity Advocate (IMCA). Furthermore, the rights of people at the heart of the most complex cases will be considered and upheld by the new ‘Approved Mental Capacity Professional’ (AMCP) role.

The LPS will cover a wider range of settings than just hospitals and care homes, providing protections to people receiving care or treatment, for example, in their own homes or in private accommodation. A decision from the Court of Protection will no longer usually be needed for deprivations of liberty that occur in these settings. This will make access to safeguards more straightforward, and quicker, for more people.

The new system has been designed to better integrate with other relevant legal frameworks. The aim is for LPS practice to become embedded into mainstream healthcare and social care assessments and planning, such as the Care Act 2014 care and support planning. This integration will make the overall process more straightforward for the person and easier for local authorities by reducing duplication.

The core principles of the MCA are at the heart of the proposed design for LPS. This will help to further align mental capacity awareness and practice across different settings and professions. LPS will extend safeguards to 16 and 17 year olds. This will streamline existing processes and improve access to safeguards for young people. For example, a decision from the Court of Protection will no longer be needed in every case.

Clinical commissioning groups (CCGs) and NHS trusts will now have a role in arranging assessments and authorising arrangements. This will help share the administrative burden and bureaucracy which has built up under the DoLS.

The number of assessments required to grant a deprivation of liberty authorisation will also be reduced from 6 to 3, and local authorities will be able to renew authorisations without having to restart from scratch.

These measures should relieve the cost pressure on the system – the Law Commission report’s accompanying impact assessment estimated the cost of full compliance with the DoLS regime following the Cheshire West ruling as £2.2 billion per year^{[footnote 3]}.

We know that under the current DoLS system many people are not receiving Article 5 safeguards for significant periods of time, or in some cases at all, as result of the backlog of cases awaiting authorisation. We believe the effective safeguards built in to the LPS process represents an efficient way to deliver effective Article 5 protections.

Engagement and involvement

The Law Commission consulted extensively on the DoLS system between 2014 and 2017 to arrive at its proposals for reform in its report on the Mental Capacity and Deprivation of Liberty Safeguards published in March 2017.

We have subsequently worked with a diverse range of people and groups, across England and Wales as we have developed the policy design for LPS. Furthermore, a public consultation in 2021 will gather more views on the proposed design and plans for implementation. Pre-consultation, we have worked with:

• people with lived experience and their families
• paid and unpaid carers
• social care providers
• local authorities
• third sector organisations
• the Welsh Government
• the Care Quality Commission (CQC) and Ofsted
• NHS trust and CCGs

We have also drawn on the Law Commission’s extensive engagement activities to inform this assessment.

The Department for Education worked with DHSC to develop proposals for 16 and 17 year olds to be included in the new LPS system. Expert stakeholders and disability organisations were involved to explore how the proposals would safeguard and support young people with disabilities and their particular needs.

A public consultation in 2021 will gather more views on the proposed design and plans for implementation. This will last for 12 weeks and cover the draft LPS regulations and the Code, which will underpin the new system. As part of this consultation, we will carry out events with a range of stakeholders, including people with lived experience and those with certain protected characteristics, including disability. This will enable and encourage people to engage with the consultation and submit their feedback. A detailed summary of the Code of Practice and the consultation document will be available in an accessible format called easy read. The government will carefully consider responses to this consultation before making final decisions about the design and implementation of LPS.

The government has also developed draft implementation products to support organisations and professionals preparing for the implementation of LPS. These have been published for consultation too.

Analysis by protected characteristic

Data sources

To consider the impact of DoLS and the LPS, we have used data from the NHS Digital 2019 to 2020 Official DoLS Statistics report^{[footnote 2]} for information on protected characteristics. These statistics apply to England only. We have also used assumptions from the Law Commission’s report Mental Capacity and Deprivation of Liberty^{[footnote 4]}, and the accompanying impact assessment^{[footnote 3]}).

For data in Wales we have used the Care Inspectorate Wales (CIW) and Healthcare Inspectorate Wales (HIW) monitoring report, although this report provides limited information about protected characteristics. The Welsh Government has published a separate equalities analysis for Wales.

For data on adult social care activity in England we have used data from the 2019 to 2020 Adult Social Care Activity and Finance Report, England.

Overall, the 2019 to 2020 data used in this updated analysis is consistent with the trends observed in the 2018 equalities assessment of the bill. Further detail on each protected characteristic is provided in this analysis.

Disability

The Equality Act 2010 defines disability as a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on a person’s ability to carry out normal day to day activities. The LPS specifically applies to people with a mental disorder who lack the relevant mental capacity to consent to arrangements for their care or treatment that give rise to a deprivation of liberty. Therefore, people with a disability, as defined in the Equality Act 2010, will be disproportionately affected by the LPS compared to those without a disability. Improving outcomes for people sharing this characteristic is a key aim of the LPS.

Some mental disorders do not have a substantial long-term effect on the person’s ability to carry out normal day to day activities. So, it is also important to note that there will be some people who do not have a disability (as defined by the Equality Act 2010) but who have a mental disorder and lack relevant mental capacity. They will also receive the protections provided by the LPS.

Definition of a deprivation of liberty

It is important that the human rights of individuals are protected and, where a deprivation of liberty is necessary and proportionate, it is authorised appropriately. The Code sets out what constitutes a deprivation of liberty based on the 3 elements. The Code explains what each element means – including the ‘acid test’ set out in the Cheshire West judgment – and how, when considered together, they may indicate whether somebody is being deprived of their liberty.

The LPS will apply to cases where state oversight can uphold important human rights. State involvement in people’s lives can be intrusive and stressful. Even though the LPS is more streamlined than DoLS, it still includes significant processes for the person to go through, such as assessments, consultation, and reviews. It is therefore important that the person only goes through the LPS process if it is absolutely necessary and proportionate to protect the person’s Article 5 rights.

It is particularly important to consider the impact of state involvement in private settings. Good health and social care should ensure that the person is supported to have choice over the way they live their life, and to live it as independently as possible. In some cases, the person may need to be supported to do this, such as support from a carer to access services. This does not necessarily mean that the person is always deprived of their liberty.

In some cases, the person may be subject to restrictions which do not amount to a deprivation of liberty. They will therefore not be entitled to the safeguards provided under the LPS. However, many people in England, including people with a disability, who are not deprived of their liberty will still be afforded care and protections under the Care Act 2014, which includes ‘adult safeguarding’ provisions. This should reduce the negative impact on people with disabilities.

Assessments

The assessments process for LPS is designed to be less burdensome than DoLS. Currently, due to the volume of cases and the bureaucratic nature of DoLS, there are a large number of cases waiting to be processed. People with disabilities are not accessing safeguards to which they are entitled. The LPS process includes improvements to the assessment process to ensure that people with disabilities will be able to access the safeguards more easily.

Firstly, the number of assessments has been reduced from 3 to 6. This will reduce the burden on the person and their family, and therefore have a positive impact on people with disabilities.

Secondly, the Code sets out that previous and equivalent assessments can be used, where appropriate. The intention of this policy is to reduce the burden of the process on the person, by removing unnecessary additional assessments. For example, if the person already has a diagnosis for a long-term condition such as a learning disability, it may be burdensome to put them through a further assessment for the purposes of LPS, to come to the same outcome. Therefore, if used correctly, this policy is likely to have a positive impact on the person.

Consultation

Under LPS, there is an explicit duty to consult with the person whose arrangements are being considered. This is to ensure that the person’s wishes and feelings are heard and taken into account. This is likely to have a positive impact on those who may need an LPS authorisation, including people with disabilities, because it makes the process more person-centric, and the arrangements should be more aligned with what their preferences are.

Duration of authorisations

LPS authorisations can be renewed and could last up to 3 years where appropriate (after an initial authorisation and renewal of up to one year each), compared to a maximum of one year under DoLS. The Code explains that a 3-year authorisation would only be appropriate where it is unlikely that there will be any significant change in the person’s condition. There will also be a regular programme of reviews in place during this period and, for example, a change in the person’s condition or circumstances will trigger a review of the authorisation. These reviews will be aligned with other health and care plan reviews to reduce the number of processes that the person goes through. This approach should reduce the burden of potentially invasive assessments for people with long-term and stable conditions, and their families, while still providing them with the safeguards they need. This will have a positive impact on people with certain long-term, stable disabilities, conditions and disorders.

AMCPs

Under the LPS, an AMCP will carry out the pre-authorisation review and the review in some circumstances, including if there is reasonable belief a person does not wish to reside or receive care or treatment in a place. It is possible that people with certain kinds of disabilities will be less able or less likely to express their feelings about their arrangements and it could therefore be more difficult for their case to receive the enhanced oversight provided by an AMCP. We recognise this, and the LPS allows for concerns that the person does not wish to reside or receive care or treatment in a place to be raised by anyone, for example by a family member on the person’s behalf. This will have a positive impact on people with certain kinds of disabilities – such as those which impact on the person’s ability to communicate – as it will remove or minimise disadvantages suffered by them, thus advancing equality of opportunity. The Code provides best-practice guidance for consulting with the person and those who know them best to make sure that their wishes and feelings are at the centre of the process.

IMCAs and the Appropriate Person role

The LPS also includes the new IMCA and Appropriate Person roles. These roles are key to ensuring the person’s wishes and feelings about their care, treatment and support are represented, and the person is supported to be involved in the process. These roles will help the person to communicate their views, wishes and feelings, which will help keep them at the centre of the LPS process. IMCAs and the Appropriate Person can also apply to the Court of Protection or provide the person with assistance to do so. The Appropriate Person role can be fulfilled by someone close to the person who understands them well and can support their active involvement in the LPS process, for example a family member or friend. If the Appropriate Person needs some support to carry out this role successfully then an IMCA can help them. If there is no one suitable to be the Appropriate Person, and IMCA can be appointed to support the person. IMCAs are trained advocates who will support the person throughout the LPS process, as an Appropriate Person would. This additional support and representation will benefit people with disabilities because it will help to ensure that the person’s Article 5 rights under the European Convention on Human Rights are being protected and upheld by the Responsible Body and those carrying out the arrangements.

LPS – Mental Health Act 1983 interface

There is an ‘interface’ between the Mental Health Act 1983 (MHA) and the LPS. In some cases, a person with a mental illness who requires a deprivation of liberty for treatment of a mental disorder in hospital could have their arrangements authorised either under the MHA or the LPS. This interface replicates the interface between the MHA and DoLS. We recognise that detention under the MHA is potentially more restrictive than the LPS and may be considered stigmatising by the person. However, both regimes are based on the need to impose as few restrictions on liberty and autonomy as possible. In cases where decision makers have a choice between the 2 statutory frameworks, decision should always be made depending on the unique circumstances of each case, and not on the basis that one regime generally provides greater safeguards than the other. The Code provides guidance on this. Although people with mental illness might be subject to different legislation, both the MHA and the LPS provide legal safeguards and protections as required by Article 5 and therefore neither regime causes significant disadvantages for the person when compared to the other.

The interface between the DoLS and the MHA was examined as part of the Independent Review of the Mental Health Act, chaired by Sir Simon Wessely, which reported in December 2018. This recommended a clearer dividing line between the 2 Acts based on whether or not the patient is clearly objecting to detention or treatment. The effect would be that all patients without the relevant capacity, who do not object, would be subject to the DoLS/LPS and not the MHA. However, the public consultation ‘Reforming the Mental Health Act’ demonstrated no significant support for this proposal. The government published a response to this public consultation in July 2021. This response explained that the government does not intend to take forward reform of the interface at this time, but instead will seek to build a new evidence base on this issue, through robust data collection, to better understand our understanding of the interface.

Scope of LPS – settings

DoLS only applies in hospitals and care homes, and deprivations of liberty that occur in domestic and community settings must be authorised by the Court of Protection. Although the Court of Protection provides certain safeguards, we know that in many situations applications are simply not made - leaving people without any safeguards. Also, court applications can be lengthy and costly, and often distressing for the person and their family.

The LPS will – in principle – apply in all settings, and deprivations of liberty will be authorised by the relevant Responsible Body. This means that all individuals aged 16 years old and over, who may need to be deprived of liberty, will have access to the same safeguards via a single process. This extension to all settings is consistent with the application of the MCA overall, which applies in all settings, and removes an inequality between people with disabilities being cared for in the community and at home, versus those who are being cared for in care homes or hospitals. The Court of Protection will still have an important role in the LPS, for example if the person wishes to challenge their authorisation.

Responsible Bodies authorising deprivations of liberty in all settings will have a positive impact on people with disabilities, and should advance equality of opportunity for people with disabilities being cared for in the community and at home. This is because they will regardless of the setting care or treatment is given in. In many cases, the person will already be known to the Responsible Body. For example, it may be that the Responsible Body is already involved in arranging the person’s health or care plan. This means that the LPS processes (for example, the assessments and reviews) can be integrated into statutory health and social care processes. This will be less intrusive for the person, as they may be able to go through fewer processes overall. Having the same organisation who is responsible for arranging the person’s care and treatment be responsible for organising the LPS assessments and authorising the arrangements will also have a positive impact on people with disabilities. This should mean that the most appropriate arrangements that are identified can be put in place quickly. Firstly, the LPS process will be less burdensome than applying to the Court of Protection and take less time. This will benefit people deprived of liberty and those closest to them. Secondly, under the current system, applying to the Court of Protection for an authorisation can generate costs for the applicant. This will not be the case under the LPS, so there will be no need to seek legal support or go through the legal aid means testing process. The LPS will be easier to access for people deprived of liberty in domestic and community settings and the people closest to them. This should advance equality of opportunity and ensure that authorisations are more representative of the overall population.

Sex

The NHS Digital MCA DoLS Report shows that 58% of applications for DoLS in 2019 to 2020 were made in relation to women, across both England and Wales. This may be because women have a longer life expectancy^{[footnote 5]}) so are more likely to lose capacity to make certain decisions because of age related conditions, including dementia. This means that women will be affected and benefit more from the increased access to safeguards provided by the LPS. As this proportion is in line with those receiving long-term support in social care, there is no indication that the system disadvantages men: we do not expect this to change. LPS will apply in more settings than DoLS – extending from care homes and hospitals to community settings. This disproportionate impact on women may be tempered by the fact that a higher percentage of men (73%) than women (68%) that receive long-term social care receive it in the community (Adult Social Care Activity and Finance Report, 2019 to 2020)^{[footnote 6]}). We therefore expect both sexes to benefit from the safeguards provided by the LPS.

Unpaid carers

According to Carers UK, 58% of unpaid carers are women^{[footnote 7]}). While not all unpaid carers will be involved in the LPS system, women will disproportionately benefit from the benefits envisaged for carers outlined in the ‘Impacts on other people’ section of this assessment. As DoLS only applies in care home and hospitals, under existing rules, a deprivation of liberty in a private home would have to be authorised by the Court of Protection. LPS will apply in domestic settings, and will take less time and be more straightforward than applying to the Court, which is beneficial to the individual and those closest to them. This will be disproportionately beneficial to women, as they make up the majority of unpaid carers and are therefore more likely to be caring for someone deprived of their liberty in a community setting.

The role of the Appropriate Person is designed to be carried out by someone who knows the person well. Unpaid carers will often have a close relationship with the person they provide care for and will be suitable for the role of Appropriate Person. This role provides an opportunity to support and represent the person who is going through the LPS process. As more women are unpaid carers, they are more likely to care for someone deprived of their liberty at home, and therefore more likely to be disproportionately affected by this new role. Overall we would anticipate that this would have a positive impact, as the Appropriate Person is able to be involved in the LPS process and represent the person they care about. They Responsible Body is also required to keep them informed throughout the process. However, we recognise that the role could generate extra responsibilities or be stressful for the person taking it on. The potential Appropriate Person must consent to their appointment, and in some cases will be supported to fulfil the role by an IMCA.

Under the LPS, there is an explicit duty to consult with the person whose arrangements are being assessed for an authorisation. Anyone engaging in caring for the person or interested in their welfare will also be consulted, if appropriate and practicable. This will include unpaid carers. The main purpose of consultation is to ascertain the person’s wishes and feelings in relation to the proposed arrangements. Those who know the person and can understand and describe the person’s wishes and feelings will be able to communicate this to the Responsible Body authorising the arrangements. We expect this duty to have a positive impact on the person whose arrangements are being authorised as the arrangements should be more aligned with their preferences. This will disproportionately affect women, as most DoLS applications are on behalf of women. Because more unpaid carers are women, and they will likely be consulted under the LPS processes, this duty will also disproportionately affect women who are unpaid carers. There will be a formal duty to take into consideration their understanding of the person’s wishes and feelings, which should result in arrangements which better suit the person they care for. We expect the impact to be positive for unpaid carers as this should, in turn, mean that the care for the person improves.

Race

Table 1: ethnic breakdown of DoLS applications, social care population and overall population

	Asian/Asian British	Black/Black British	Mixed/Multiple/ other	White	Undeclared/no data
% DoLS applications	1.8	2.0	1.4	88.4	6.4
% social care population	5.1	4.2	2.2	84.7	3.8
% overall 18+ population	7.7	3.4	2.8	86.1	0.0

Source: MCA, DoLS England, 2019 to 2020. NHS Digital.

As the above figures show, the proportion of applicants for DoLS from BAME backgrounds is lower than that compared to the proportion in social care, and of the overall 18+ population. This is especially the case for those who are Asian/Asian British.

We have facilitated engagement workshops with a range of stakeholders including those from BAME backgrounds. Participants from BAME communities have told us that people from their communities have a preference to receive care in their own home. This is evidenced by the statistics for care settings:

Table 2: ethnic breakdown of care settings

	Asian/Asian British	Black/Black British	Mixed/Multiple/ other	White	Undeclared/ no data
% in a community setting	6.50	5.08	2.53	81.95	3.95
% in a nursing setting	2.08	2.85	1.28	90.03	3.70
% in a residential care home setting	1.71	2.04	1.40	91.49	3.37

Source: NHS Digital, 2020. Analysis of Short and Long Term (SALT) data from the Adult Social Care Activity and Finance Report, England 2019 to 2020.

This data shows that a higher percentage of BAME people receive their care in the community than in nursing or residential care home settings. Under DoLS, deprivations of liberty which take place in the community must be authorised by the Court of Protection. Under the LPS, Responsible Bodies will authorise deprivations of liberty taking place in all settings. This should improve access to important safeguards and the experience of accessing those safeguards, for BAME people. In the section on Disability, we describe the benefits of having Responsible Bodies authorise deprivations of liberty in all settings. The advantages described will also be experienced by people with other protected characteristics who receive their care in the community and at home. As a higher percentage of BAME people receive their care in the community and at home they will be particularly benefited by this extension.

LPS – Mental Health Act 1983 interface

BAME people have much higher rates of detention under the MHA than White people nationally, as reported by the CQC in their 2018 report, ‘The rise in the use of the MHA to detain people in England’^{[footnote 8]}). The CQC reported that staff interviewed during their site visits “commonly believed that Black people, and particularly Black men, will often have first contact with services late in their illness which makes them more likely to be detained”. The 2019 to 2020 MHA statistics show that known rates of detention for Black or Black British people (321.7 detentions per 100,000 population) were over four times those of white people (73.4 per 100,000 population)^{[footnote 9]}. The White Paper ‘Reforming the Mental Health Act’, contains proposals to address inequalities in the application of the Act through improving the transparency of decision making, providing greater choice and autonomy, and increasing the ability for patients to challenge decisions.

In some cases, a person with a mental illness that requires arrangements that amount to a deprivation of liberty for the purpose of their care and treatment could have their arrangements authorised either under the MHA or the LPS. This replicates the interface between the MHA and DoLS. We recognise that the higher rates of detention under the MHA of Black or Black British people mean that there is a potential equality impact in relation to the protected characteristic of race, in terms of access to the LPS. The Code of Practice clearly states that the regime used to authorise a person’s deprivation of liberty, where the interface applies, should never be based on the general preference of the assessor. The professional should always consider the less restrictive regime. In addition, both the MHA and the LPS provide the legal safeguards and protections as required by Article 5. This should minimise any negative impact of the interface.

Age

In England, almost three quarters of applications for DoLS were for those over 75 years old in 2019 to 2020. In this period, in England, 6,769 in 100,000 people over 85 years old were under a DoLS application, while only 101 in 100,000 18 to 64-year olds were^{[footnote 2]}. This is mirrored in Wales, with more than 85% of applications for people over the age of 65 in 2019 to 2020^{[footnote 10]}. This is because a much higher number of older adults live and are cared for in care homes compared to younger adults. This is also compounded by the fact that age-related conditions such as dementia can significantly affect mental capacity. Therefore, older people will be particularly affected by the introduction of the LPS. Specific impacts are set out below.

The LPS will also have impacts on 16 and 17 year olds. The Law Commission’s report on the MCA and DoLS recommended that the legal authorisation process was extended to 16 and 17 year olds (DoLS applies only to those 18 and over). The MC(A)A introduced these changes and extends LPS to that cohort. Further analysis is set out below.

Definition of a deprivation of liberty

As outlined in the analysis of the protected characteristic of disability, the Code sets out the definition of deprivation of liberty. We expect the definition to benefit older people because what constitutes a deprivation of liberty will be clearer and in line with good practice. Many people in England, including older people, who are not deprived of their liberty would still be afforded care and protections under the Care Act 2014, which includes the safeguarding system. This should reduce the negative impact on older people to whom the LPS will not apply.

Duration of authorisations

LPS authorisations can be renewed and could last up to 3 years where appropriate (after an initial authorisation and renewal of up to one year each), compared to a maximum of one year under DoLS. The benefits of this for people with disabilities who have long-term and stable conditions is set out in the section ‘Disability’. The benefits of longer authorisation periods will also be felt by other people who have long-term and stable conditions. As older people will be disproportionately affected by the LPS, they will be disproportionately benefited by the introduction of longer authorisation periods.

Role of care home staff

Care home staff are excluded from being able to complete assessments and the pre-authorisation review in cases where they have a connection with a relevant care home. This safeguard is in place to make sure there is an appropriate separation between those providing paid care for the person, and the LPS process. It means that people with a vested interest in an authorisation being granted will not be able to complete key processes and formal decisions needed for that authorisation to be considered. This should help to eliminate any potential unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010. As most people who live and are cared for in care homes are older people, they will benefit most from this safeguard. We do not expect anyone in any other setting to be disadvantaged by this policy. As with the other safeguards under LPS, this will also affect those with disability, and women, positively, and more than the overall population.

The MC(A)A introduced a role for the care home manager in the LPS process. The government has decided not to commence the relevant provisions for this, but will keep the role under review and will consider feedback received at consultation. The aim of this role was to enable individuals who know the person well, and understand their wishes and feelings, to lead the LPS process. We do not expect that putting the commencement of this role on hold to disadvantage older people. This is because care home managers, alongside other care home staff who know the person well, will still be consulted during the LPS process. There may be a small negative impact on the older people as Responsible Bodies will need to process all relevant cases, with less support from care home managers. This could increase pressure on Responsible Bodies, causing delays and leading to people being unlawfully deprived of their liberty. However, the LPS has been designed to ease administrative pressure on Responsible Bodies overall and to better integrate LPS processes with standard care and support planning (compared to DoLS). This should enable Responsible Bodies to process cases in the required timeframe and prevent unauthorised cases building up. As a result, the overall impact on the cohort will be neutral.

IMCAs and the Appropriate Person role

The LPS introduces the role of the Appropriate Person. Under the LPS, if there is no-one suitable to act as the Appropriate Person, the Responsible Body will, in most cases, appoint an IMCA. IMCAs are trained advocates who will represent and support the person throughout the LPS process, as an Appropriate Person would. IMCAs will mainly support people who are ‘unbefriended’ and do not have friends or family who could fulfil the Appropriate Person role. Older people are more likely than younger people to be unbefriended. The Social Care Institute for Excellence’s report ’At a glance 60: preventing loneliness and social isolation among older people’ reported that “older people are particularly vulnerable to social isolation and loneliness owing to loss of friends and family, mobility or income”^{[footnote 11]}. The IMCA role will benefit those who are unbefriended and therefore older people (disproportionately). The role will have the effect of removing or minimising the disadvantages suffered (disproportionately) by older people by ensuring greater access to advocacy and so advances equality of opportunity.

Scope of LPS – settings

Younger people (aged 18 to 64 years) are less likely to live in residential care homes, and more likely to be supported in the community, compared to older people. The 2019 to 2020 SALT data shows that 13% of younger people live in residential care homes, while 84% receive support in the community. For people aged over 65 years, 26% live in residential care homes and 60% are supported in the community^{[footnote 6]}. The LPS safeguards will apply to people who receive their social care in community settings too. The LPS will benefit this group because the process is streamlined, compared to a Court of Protection application and order (more detail is provided in the ‘Race’ section of this assessment).

LPS and 16 and 17 year olds

Currently, arrangements which constitute a deprivation of liberty for 16 and 17 year olds should be authorised through the Court of Protection. Going through the Court of Protection can be burdensome and potentially distressing for a young person. These issues will be alleviated by LPS, because this group of young people will have easier access to safeguards. Overall, extending the legal authorisation process should ensure a more streamlined service for young people.

The government is concerned about low levels of awareness and application of procedures to authorise deprivations of liberty for young people in all settings – i.e. application to the Court of Protection. On average, local authorities make very few applications to the Court of Protection in relation to young people. The Code includes specific information on the LPS process for 16 and 17 year olds to support the implementation of the system within this group.

Due to the low number of 16 and 17 year olds receiving authorisations through the Court of Protection there is limited information available to assess the impact on young people with other protected characteristics. As the PSED is an ongoing duty we will continue to keep this analysis under review as the implementation of LPS progresses.

Religion or belief

All people will be subject to the same process for the LPS, regardless of religion or belief. We do not hold any data on religion or belief so are unable to analyse whether the current system applies to anyone disproportionately based on this characteristic, and accordingly whether they would experience an adverse impact.

Some people waiting for a DoLS authorisation may be being unlawfully deprived of their liberty. If they die in these circumstances, a coroner must hold an inquest with a jury into the death. This could risk delaying a swift burial, a potential issue of concern for people of Jewish or Muslim faith. However, if a person dies and their arrangements have been authorised under the DoLS, any inquest does not need to be held with a jury, so this delay should not occur. This is a proportionate safeguard and the protocol will be replicated under the LPS. The streamlined LPS system will decrease the number of cases waiting for authorisation. This means that the negative impact for people who are Jewish or Muslim (and their families and loved ones) will reduce.

Consultation

Those responsible for planning a person’s care involving a deprivation of liberty should ensure that the person’s religious needs are taken fully into account. As well as working with the person to understand those needs, engaging family and carers can help with this, particularly if the person struggles to make their religious needs understood. The LPS has an explicit duty to conduct consultation and this will help advance equality of opportunity and experience for those of religion or belief. The individual undertaking the consultation should try to find out the person’s views, including their beliefs, values and cultural background when ascertaining what the person’s wishes and feelings are. This can be done by consulting those who know and understand the person.

Other protected characteristics considered: gender reassignment (including transgender) and sexual orientation, and pregnancy and maternity

All people subject to the LPS will be subject to the same process for assessment and authorisation of a deprivation of liberty regardless of gender reassignment, their sexual orientation or the characteristic of pregnancy and maternity. We have considered these protected characteristics but do not have sufficient data to make a robust analysis of the potential impact to people who share them. However, we do not expect these groups will be differentially or adversely effected by the implementation of the LPS. As the PSED is an ongoing duty we will continue to keep this analysis under review as the implementation of LPS progresses.

Impacts on other people

Carers

Under DoLS, where a person who lacks the relevant mental capacity is deprived of their liberty outside of a care home or hospital, this must be authorised by the Court of Protection under section 16 of the MCA. This can be a long process which requires the person, a family member or other carer, or the CCG or local authority to go to court (potentially at financial cost to themselves). The process can leave applicants and the person with a level of uncertainty while they wait for their case to be heard. The Law Commission estimated that 53,000 cases of deprivation of liberty occur in domestic settings. However, in 2018 to 2019, only 3,497 applications were made to the Court of Protection relating to such cases. This suggests that many people are unable to access safeguards to which they entitled. This may be due to lack of awareness of the need to seek a court order for such arrangements, or due to the costs and bureaucracy of going through this process.

Deprivations of liberty in domestic settings will be brought under the LPS. We have considered the obvious benefits that the Court of Protection can bring when it considers deprivation of liberty, for example in its high levels of rigour. However, overall, we have concluded that the authorisation via the LPS process will have a positive impact on carers overall. LPS will provide an appropriate level of safeguards and will not require carers to engage in a potentially stressful and costly court process. The person and their family will not have to pay for any of the costs associated with the LPS authorisation process.

Other impacts include carers being consulted by the Responsible Body, if appropriate. Their understanding of the person’s wishes and feelings should lead to an improved quality of care for the person.

Parents

Parents (and those with parental responsibility) for those aged 16 and 17 years will be impacted by the LPS. The Supreme Court’s decision in the case of Re D (a child) [2019] means that parents of 16 and 17 year olds cannot consent to arrangements that would otherwise amount to a deprivation of liberty on their behalf. DoLS only applies once a person reaches 18, and arrangements for 16 and 17 year olds are authorised through the Court of Protection. This can be a long process which requires an application to the Court of Protection, potentially at financial cost to the family. This can be a stressful and bureaucratic. The LPS will apply to 16 and 17 year olds, and this is expected to have an overall positive impact on their parents.

In most cases, the young person’s parents and those with parental responsibility for them will be consulted during the consultation part of the LPS process and they will be able to help the Responsible Body establish the person’s wishes and feelings. We expect this to have an overall positive impact on parents, as they will often know the young person best and can be assured that the young person’s wishes and feelings are communicated.

Parents will also be able to undertake the Appropriate Person role, if they are suitable. The Appropriate Person will help and support the person whose arrangements are being considered to communicate their views, wishes and feelings throughout the process.

Foster carers

Foster carers of young people will also be impacted by the introduction of LPS in a similar way that parents are. Foster carers are able to fulfil the role of the Appropriate Person, and, in most cases, will be consulted during the consultation part of the LPS process. This may have an overall positive impact on foster carers, as they will be able to engage with the process. It will also have a positive impact on the young person, as, their foster carers’ knowledge of their views, wishes and feelings will be communicated to the Responsible Body.

Regional difference

DoLS applications made, and completion, can vary across regions. In the North East of England, where the highest rate of applications was recorded in 2019 to 2020, there were 1,167 applications per 100,000 people. This contrasts with the South West, where the lowest rate of applications was recorded at 518 per 100,000 people. Factors such as urgent authorisation applications and supervisory bodies being granted applications for shorter periods of time are possible influences. Nursing and residential care homes are consistently seen as the primary source or applications. In 2019 to 2020 in England, 62% of applications came from these settings with a small variation between regions.

There is no significant difference in the prevalence of applications in England and Wales. Welsh data shows an average of 669 DoLS applications per 100,000 people in 2019 to 2020, and English data shows 569 per 100,000 in 2019 to 2020. The number of applications per 100,000 people is increasing over time in both England and in Wales. The 2019 to 2020 CIW-HIW monitoring report observes that “the figures for health boards were considerably higher than previous years, with approximately twice as many applications relative to the population for some health boards, when compared to the previous year”. An increase was also seen in 12 of the 22 local authorities in Wales.

Other

We have also considered the need to foster good relations between those who share a protected characteristic and persons who do not share it. We are not aware of any evidence on the potential impact of the LPS on such relations.

Analysis of the LPS monitoring and reporting system

In England, the CQC and Ofsted will have oversight of the operation of the LPS scheme through a monitoring and reporting system which will be set out in regulations and the Code of Practice. Through this system, information about certain protected characteristics will be collected. This will ensure that there is ongoing data on the impacts of the LPS on those with protected characteristics. In Wales, the functions of monitoring the operation of the LPS falls to Welsh ministers and will be set out in Welsh regulations. The Welsh Government has published a separate equalities assessment for Wales.

The English monitoring and reporting regulations provide a set of powers that CQC and Ofsted can use in any setting where there is an LPS authorisation. This includes the power to visit a setting where the authorisation is taking place, meet the person, request records relating to their care and treatment and meet with people caring for the person or who have an interest in their welfare. These powers will help prevent abuse and neglect and/or unauthorised deprivations of liberty as far as possible by ensuring that CQC and Ofsted can effectively monitor the LPS. CQC and Ofsted must produce an annual report summarising their activity and findings about the operation of the LPS. These should flag any systemic concerns about the operation of the LPS that the monitoring bodies observe. Identifying these issues so the relevant action can be taken to address them will help to ensure people across the country have the same quality of safeguards.

Overall, the monitoring and reporting system is likely to have a positive impact on everyone subject to the LPS, as it will provide oversight of the LPS scheme that will help to protect the person’s human rights. As older people and people with disabilities are disproportionately affected by the LPS, they will be particularly benefited by this system.

The monitoring and reporting system will also cover authorisations in settings where there is no regulated activity being provided (under DoLS, these cases fall under the Court of Protection). This mitigates the risk of discriminating against some people with protected characteristics, disproportionately. The analysis on Race above sets out that data shows that a higher percentage of BAME people receive their care in the community and in their own home, than in nursing or residential care home settings. A comprehensive oversight system will help to ensure the rights of people deprived in any setting are protected.

The regulations underpinning the design of the monitoring and reporting system in England are subject to consultation and will be subject to Parliamentary procedure before the final versions are published. The PSED is an ongoing duty so we will continue to keep this analysis under review as the implementation of LPS progresses.

The NHS Act 2006 and the Family Test

The NHS Act 2006

Health inequalities

We have considered the Secretary of State’s duty in the NHS Act 2006 to have regard to the need to reduce inequalities between the people of England with respect to the benefits that they can obtain from the health service. The DoLS scheme is unable to cope with current numbers and does not provide adequate safeguards under Article 5. The reformed model will reduce the backlog and ensure that all those who need access to safeguards can do so. This will promote equality.

The LPS is designed to be more streamlined, and to be integrated into standard health and care planning. This will reduce the duplication of processes, reducing the burden on public sector time and funding. By alleviating the resource required, local authorities and care providers will have more to spend on other priorities. This should help to reduce health inequalities in more deprived areas. This may also have an effect of improving health inequalities that arise as a result of race. In 2019, people from all ethnic minority groups except the Indian, Chinese, White Irish and White Other groups were more likely than White British people to live in the most overall deprived 10% of neighbourhoods in England.^{[footnote 12]}

We are aware that sufficient diligence will need to be given to training all those involved in implementing the new scheme. This will be achieved through a comprehensive training framework and workforce strategy, reinforced by the Code, to mitigate potential variations in the quality of administration and care. The relevant monitoring bodies for LPS, in England and Wales, will also have a role in providing scrutiny over how the LPS system is being implemented.

Under the current system there is a risk that people who fund their own care may fall into a gap as the local authority does not have oversight of their care, and relies on the care home to notify them when a DoLS authorisation may be required. Under the LPS, the care home will still need to notify the Responsible Body that an authorisation may be required, and therefore there is still a risk that some people might be missed. The training framework and workforce strategy will set out what training all staff must undergo, which will include training to recognise potential deprivations of liberty and how to begin the LPS process.

The new system will also reduce an existing inequality between people who are waiting for the DoLS application to be considered (and are therefore unable to access Article 5 safeguards) and those whose deprivations of liberty have been authorised under the DoLS. It is our intention that by creating a more efficient and streamlined system and therefore reducing and in time eradicate the backlog, this health inequality will be reduced.

Comprehensive health service

We have also considered the Secretary of State’s duty in the NHS Act 2006 to continue the promotion in England of a comprehensive health service designed to secure improvement in the physical and mental health of the people of England, and in the prevention, diagnosis and treatment of physical and mental illness.

The LPS will be the system through which arrangements enabling care and treatment which amount to a deprivation of liberty, can be authorised in compliance with Article 5. This contributes to a more comprehensive health service because it means that clinicians can provide care and treatment to people who lack the relevant mental capacity to consent to such arrangements. Under the DoLS, we know that people are waiting a long time for their arrangements to be authorised and therefore cannot lawfully be given the care and treatment they need. The LPS will be more streamlined than the current system so arrangements will be authorised and put in place more quickly. This will enable clinicians to deliver care and treatment more promptly, under the appropriate legal safeguards.

Quality improvement

We have also considered the Secretary of State’s duty under section 1A of the NHS Act 2006 to exercise functions in relation to the health service with a view to securing continuous improvement in the quality of services provided to individuals for or in connection with the prevention, diagnosis or treatment of illness, or the protection or improvement of public health.

The DoLS system is unable to cope with the number of people requiring their deprivation of liberty to be authorised. The number of applications that have not been completed means many of individuals are left without safeguards and health services for an extended period. As the LPS will be more streamlined we anticipate that this will result in an improvement in the quality of health services provided to individuals, as they will receive appropriate legal safeguards and health services more quickly. In addition, the LPS is designed to be part of the wider health and care planning process, enabling more comprehensive care and treatment packages to be developed. This will improve the quality of service as the arrangements and the care and treatment will be jointly planned and delivered, which will reduce the number of processes that professionals have to go through, leaving them more time for delivering care and treatment.

Family Test

The objective of The Family Test is to introduce an explicit family perspective to the policy making process and ensure that potential impacts on family relationships and functioning are made explicit and recognised in the process of developing new policy.

The Code sets out what constitutes a deprivation of liberty, which will help people identify when the LPS process is needed. Even though the LPS is more streamlined than DoLS, it still includes significant processes for the person to go through, such as assessments, consultation, and reviews. State involvement in people’s lives can be intrusive and stressful on themselves and on their family. The Code of Practice explains what type of cases and scenarios would meet the definition of a deprivation of liberty under the LPS, including in private homes. We expect the definition to reduce potentially stressful and unnecessary state intrusion into family life

The LPS introduces an explicit duty to consult with those interested in the person’s welfare, including families and carers. This duty to consult will be especially powerful when considering 16 and 17 year olds. Including the family in the consultation process will help to ensure the arrangements are necessary and proportionate, so the person might continue to play a role in the family life. Empowering family members may therefore improve maintenance of the family unit.

Where it is reasonable to believe that the person does not wish to reside or receive care or treatment in the place proposed in the arrangements, for example if a family member reports this on the person’s behalf, these cases will be reviewed by an AMCP. The AMCP is a specialist role that provides enhanced oversight for those people that need it most.

A family member will be able to trigger a review by making a reasonable request. Though this could be a burden on the family to have to make decisions for the person, they could be empowered to help support the person’s care and treatment arrangements. For example, a review would allow them to advocate for decisions which will ensure good and effective care for the person, whom they will know best.

Alternatively, there may be difficulty with involving the person’s family in their care arrangements if the relationships are already estranged, and if there is conflict amongst those family and friends who are to be consulted. The Code provides guidance on when it might not be appropriate to consult certain individuals. If there is no one who is appropriate to fulfil the role of the person’s Appropriate Person, an IMCA will in most cases be appointed to represent and support the person throughout the process.

We have engaged with carers and families and the prevailing view was that the LPS will be beneficial for family life, especially through the consultation duties introduced by the LPS. The improvements brought, including streamlining and removal of duplication, may reduce stress on families that experience a deprivation of liberty within the family unit who currently do not have access to safeguards. Making sure the LPS are quickly accessible for everyone will therefore improve life for families.

We have also engaged people with lived experience and have taken on the feedback that professionals and carers should be better able to engage with them in line with the principles of the MCA. These are:

• assume a person has the capacity to make a decision themselves, unless it’s proved otherwise.
• take all practicable steps to help people to make their own decisions
• do not treat a person as lacking the capacity to make a decision just because they make an unwise decision
• if you make a decision for or on behalf of someone who does not have capacity, it must be in their best interests
• regard must be had to whether the purpose of the decision can be achieved in a way that is less restrictive of their basic rights and freedoms

The Code of Practice for LPS has been embedded into the MCA Code of Practice, which will make it easier for professionals and carers to apply the principles of the MCA to the LPS process. The training framework and workforce strategy reflect the principles of the MCA, which will help those learning about the LPS to apply it in line with the MCA.

Summary of analysis

The overall impact

The LPS aims to ensure the process for authorising deprivations of liberty is straightforward and accessible for people who lack the relevant capacity, and their families and carers, regardless of their protected characteristics. LPS also aims to ensure that the process is fairer and more consistently applied so that everyone who is entitled to safeguards can access them. This should improve equality in the way that everyone is processed within the system, limiting victimisation, harassment, and discrimination.

Certain groups, namely older people and people with disabilities, will be affected by the implementation of LPS more than others. The safeguards put in place by a streamlined and rigorous assessment process should work towards eliminating discrimination and inequalities between these groups and others. Having an easier to understand process will be especially helpful for those who are more likely to lack the relevant capacity due to age or disability. A less burdensome system will improve the quality of experience for all protected characteristics. Additionally, the streamlined process will mean that people will be protected by the safeguards more quickly.

A large impact will be increasing the equality of opportunity for people with protected characteristics who are receiving care or treatment in the community (settings including supported living, shared living schemes and domestic settings). Their rights will be upheld via the LPS rather than having to go through the Court of Protection. We have considered the particular benefits provided by the Court of Protection. However, having also considered the potential burden of process and stress associated with going through the court process we believe that LPS will be an easier and more streamlined way of accessing safeguards and human rights. A person whose deprivation of liberty is authorised under LPS will also retain the right to challenge their authorisation in the Court of Protection.

The change in authorisation from Court of Protection to the LPS is significant in the racial equality context because proportionately, more BAME people are cared for in a community/domestic setting. Inclusion of community settings will also reach younger persons (aged under 65 years) who are more often cared for in the community. Overall, this will improve equality for these groups.

The retention and addition of the monitoring bodies CQC and Ofsted is also important in providing oversight of the system in all settings. The person who undertakes the pre-authorisation review, the IMCA, the AMCP and the Appropriate Person will provide a layer of scrutiny that will help to eliminate the chances of prejudice or discrimination in the assessing and authorising process.

Conclusion

The LPS will be more streamlined and less intrusive than the existing system, and a more effective and proportionate way of ensuring Article 5 rights for all. We expect that all people who lack capacity and need to be deprived of their liberty for their care or treatment will have the same access to the same protections, regardless of protected characteristic.

By putting the person at the heart of the system, and by extending and improving access to that system, the LPS will advance equality of opportunity, especially for those with disabilities and older people. The consultation process within LPS, which involves families and carers, aims to improve the process for the person and can consider needs particular to protected characteristics.

Making this process as straightforward as possible is an important factor in making sure everyone can access and use the system equally, regardless of age, disability or race.

To amplify this advantage, it is vital that everyone using or affected by the LPS process understands it. This will require thoroughly training reviewers, AMCPs and care providers, as well as ensuring that the person, families and carers understand LPS when planning care. The government has been working with key partners to support the implementation of the LPS, including through training materials. Our overall aim is to ensure that everyone who lacks the relevant mental capacity to consent to arrangements in place for their care and treatment, which give rise to a deprivation of liberty, is afforded the same level of safeguards. This will be done through a scheme which is designed to protect the rights of individuals and better serve the population affected. We are considering and reflecting this aim when developing the training frameworks and workforce strategy, which will be published ahead of the implementation of the LPS.

Next steps

The Mental Capacity (Amendment) Bill passed through Parliament in 2019. As mentioned in the 2018 equalities assessment which was published for the bill, an easy read version was created to increase its accessibility.

The Code of Practice and regulations which will underpin the LPS are undergoing public consultation, and will be subject to Parliamentary procedure, before the final versions are published. This public consultation will provide an opportunity for interested parties to provide feedback on the LPS system. To increase accessibility, a detailed summary of the Code of Practice and the consultation document are also published in easy read. We will also seek the views and experiences of those with lived experience through suitably accessible forums during the consultation period

If, through consultation, we identify that there is likely to be a significant adverse negative and disproportionate impact on a group, we will look at options to mitigate the impact.

The PSED is an ongoing duty so we will continue to keep this under review as the implementation of LPS progresses. We will seek to:

• continue our stakeholder engagement
• monitor and evaluate the impact of the changes brought in by the LPS
• embed the findings where appropriate

1. Cheshire West and Chester Council v P [2014] UKSC 19. ↩

2. NHS Digital (2020). Mental Capacity Act 2005, Deprivation of Liberty Safeguards England, 2019-20. ↩ ↩² ↩³

3. Law Commission (2017). Mental Capacity and Detention Impact Assessment. ↩ ↩² ↩³

4. Law Commission (2017). Mental Capacity and Deprivation of Liberty. ↩ ↩²

5. Office for National Statistics (2020). National life tables – life expectancy in the UK. ↩

6. NHS Digital. (2020). Analysis of SALT data from the Adult Social Care Activity and Finance Report, England 2019-2020. ↩ ↩²

7. Carers UK, 10 facts about women and caring in the UK on International Women’s Day. ↩

8. Care Quality Commission. (2018). Mental Health Act: The rise in the use of the MHA to detain people in England, 2018. ↩

9. NHS Digital. (2020). Mental Health Act Statistics, Annual Figures 2019-20. ↩

10. Healthcare Inspectorate Wales (2021). Deprivation of Liberty Safeguards (DoLS) annual monitoring report 2019-20. ↩

11. Social Care Institute for Excellence. (2012). At a glance 60: preventing loneliness and social isolation among older people. ↩

12. Ministry of Housing, Communities and Local Government (2019). People living in deprived neighbourhoods. ↩