The introduction of the Liberty Protection Safeguards will be of paramount importance to care home owners and their staff alike, replacing the Deprivation of Liberty Safeguards to ensure that people who must be deprived of their liberty to receive care or treatment as a result of their condition remain the principal in the decisions surrounding their deprivation of liberty.
The new assessments
The Liberty Protection Safeguards will only apply to people that satisfy a three-stage assessment process. This includes a Capacity Assessment, a Medical Assessment and a “Necessary and Proportionate” Assessment.
The Capacity Assessment simply determines the resident’s capacity to make their own decisions in regard to their care and wellbeing.
The Medical Assessment will determine the severity of a person’s mental disorder.
The “Necessary and Proportionate” Assessment determines whether the deprivation of their liberty is necessary to prevent harm to them and if the deprivation will reduce the likelihood and seriousness of any harm that would come about had they not been deprived of their liberty.
Although this all sounds like a long and taxing process, most care homes will already hold this kind of information on their residents, so the process should be much quicker than that of the previous safeguards.
The benefits
The family and/or close friends of the resident will now be much more involved in the process. There is now an explicit duty to consult the carers of the resident as to the resident’s welfare. There will also be greater opportunity to express any concerns regarding the resident’s best interests or the treatment of the resident.
When determining a resident’s place of care or treatment, it is now a requirement that an approved mental capacity professional will consult the resident and/or anyone interested in the resident’s welfare before determining their place of residence and care. This results in the approach being personalised to the resident’s needs, meaning they will always be in the right hands.
The scheme is now extended to include 16 and 17 year olds, meaning that a court order is no longer required to make a decision on deprivation of a person’s liberty at these ages.
How can a law firm help?
As there are many notable differences between the Liberty Protection Safeguards and the Deprivation of Liberty Safeguards, we can only anticipate that there will be an adjustment period in which employees of care homes will need to adapt to the new safeguards and their requirements.
As a law firm, we can draft procedure plans to ensure that these safeguards are followed closely, avoiding any potential liability as a result of missing steps which may occur due to old habits from the previous safeguards.
We will be on hand to ensure that ample advice is given to aid in the mitigation of liability and work to establish the framework to prevent any breaches of procedure that would contravene the regulations in the first place.
Previously these safeguards were planned to come into force by April 2022 but this has since been delayed, with no indication of when they are to be fully implemented by the Government. Despite this, they are certainly going to be implemented soon, so pre-empting their arrival and establishing a solid plan to ensure the regulations are complied with prior to their implementation will only make the transition that much smoother!
We specialise in helping clients buy or sell care homes, but we also support you through corporate, commercial, property and employment matters. Call us on 0117 435 4350 or email us at info@rubric.law to see how we can help you.
Get in touch with Managing Director, James Howell to discuss the best approach for your care home | info@rubric.law | 0117 435 4350
