Last reviewed 30 April 2019

The Mental Capacity (Amendment) Bill was approved by Parliament on 24 April 2019, as the House of Lords and Commons agreed a final version of the legislation.

The Bill will introduce a new system for authorising deprivations of liberty in care, to be known as the Liberty Protection Safeguards (LPS), and is likely to come into force next year. The Bill provides for the repeal of the Deprivation of Liberty Safeguards (DoLS) contained in the Mental Capacity Act 2005 (MCA).

The new LPS model will be implemented by Spring 2020, although the Government has confirmed that the DoLS will run alongside it for a year after implementation to ease the transition of existing cases.

Following Royal Assent, the Government will draft a series of regulations and produce a Code of Practice, which will go out to consultation, setting out the detail of how the LPS will work.

Ever since the 2014 Supreme Court Cheshire West judgment lowered the threshold for what constituted a deprivation of liberty in care, there was a rise in DoLS applications in England. In 2013–2014 there were 13,000 applications, rising to 227,400 in 2017–2018.

The system designed to streamline processes and reduce the resulting backlog of DoLS applications received a great deal of criticism for removing essential safeguards and posing a threat to human rights.

When Parliament was unable to agree on a new definition of a deprivation of liberty in legislation, the Government tabled an amendment to remove a statutory definition from the Bill completely, which has recently been approved by the Lords.

To offer clarification for practitioners and individuals, guidance about what types of arrangements constitute a deprivation of liberty will be provided in the Code of Practice on the LPS instead. This would be in place of a statutory definition.

Cross-bencher Baroness Murphy said that the decision to provide clarification in the Code of Practice, as opposed to inserting a clause in statute, was a mistake and would leave people waiting on case law to offer guidance.

The code will be reviewed within three years of the Bill coming into force, and then subsequently every five years.

Another change to the Bill during its parliamentary passage was the reduction in the proposed role of care managers under the LPS. Critics warned that care home managers would face an increased responsibility and workload, and a potential conflict of interest between their responsibility for ensuring the smooth running and financial health of the care home and their role as the guarantor of the service user’s rights and safeguards under LPS.

More information about the progress of the Bill is available here.