Liberty Protection Safeguards: the appropriate person and independent mental capacity advocates
Updated 3 August 2021
Applies to England and Wales
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The Liberty Protection Safeguards (LPS) will provide protection for people aged 16 and above who are, or who need to be, deprived of their liberty to enable their care or treatment and who lack the mental capacity to consent to their arrangements.
People who might have an LPS authorisation include those with dementia, autism and learning disabilities who lack the relevant capacity.
The Mental Capacity (Amendment) Act 2019 introduced the new role of the ‘appropriate person’
The appropriate person is a non-professional who provides representation and support for the person during the LPS process and throughout the duration of any authorisation given.
This is a key role in securing the person’s views, wishes and feelings about their care, treatment and support.
It is the Responsible Body’s responsibility to determine if there is someone suitable to fulfil the requirements of the appropriate person role.
The appropriate person role will normally be carried out by someone who is close to the person. For example:
- a family member
- a volunteer from a third-sector organisation
Fulfilling the role of the appropriate person is a way of allowing family members or individuals close to the person to have more involvement in the LPS process.
The appropriate person will usually be someone who knows the person well and are in the best position to represent and support them.
The appropriate person role will be undertaken by individuals who are willing and able to take on the role.
In certain circumstances, the appropriate person is entitled to support from an independent mental capacity advocate (IMCA) to assist them in carrying out their responsibilities.
If a Responsible Body appoints an appropriate person and it becomes clear that they’re no longer suitable, an alternative appropriate person or IMCA should be appointed in the vast majority of cases.
The appropriate person can also make an application to the Court of Protection, for example, to challenge an LPS authorisation. The appropriate person may also need to support the person who is seeking to challenge the authorisation in the court.
If there is no one suitable to act as an appropriate person, the Responsible Body may be required to appoint an IMCA to represent and support the person.
Independent mental capacity advocates
An IMCA is an experienced and trained individual who should represent and support the person through the LPS authorisation process and while the LPS authorisation is in force.
IMCAs will be appointed in individual cases by the Responsible Body to represent and support the person or the appropriate person.
IMCAs will be a vital safeguard to the person’s human rights throughout the assessment process and duration of any authorisation given.
There will be, in effect, a presumption that an IMCA should be appointed if there’s no appropriate person, except, for example, when having an IMCA would not be in the person’s best interests.
This might be the case if, for example, it’s established that the person has clearly expressed that they do not wish to be represented and supported by an IMCA, both currently and in the past when they had capacity to make this decision and they remain of this view.