The Government has had its first defeat on Deprivation of Liberty Safeguards (DoLS) replacement Bill as peers voted to amend one of the three conditions for authorising a deprivation under the proposed Liberty Protection Safeguards (LPS) system.

Opposition peers amended the Mental Capacity (Amendment) Bill to state that deprivation of liberty authorisation can only proceed where necessary to prevent harm to a person.

Originally, the Bill stated that for care arrangements involving a deprivation of liberty to be authorised, the cared-for person must lack capacity to consent to the arrangements and be of unsound mind; and the arrangements must be necessary and proportionate.

The amendment, which was opposed by the Government, altered the last criterion to state that it must be necessary “to prevent harm to the cared-for person”. An accompanying amendment was then agreed that the authorisation be proportionate “in relation to the likelihood and seriousness of harm to the cared-for person”.

The revised wording restates part of the best interests requirement of an authorisation under the current DoLS system.

Liberal Democrat Baroness Barker spoke for the amendments when she said the original necessary and proportionate requirement seemed to “be a weakening of the protections for an individual” compared with DoLS, because it was not related directly to the cared-for person’s best interests. She stressed that it should be harm to the person, rather than harm to others, that should be the focus of decision-making under LPS. She also said that it was essential that this was written into the text of the Bill, as opposed to the Code of Practice, so that it was legally enforceable.

She stated: “When there are arguments about whether a deprivation of liberty is lawful, those arguing the case, particularly judges, do not go to the Code of Practice but to the statute. A Code of Practice can go on for pages and pages and include numerous examples, as it should, so that practitioners know where they are. But it does not and never will carry the legal force which comes from the wording in the act.”

However, Junior Health Minister Lord O’Shaughnessy said the amendments risked emphasising harm to the cared-for person at the expense of other factors in the necessary and proportionate assessment, notably harm to others, preventing assessors from making balanced decisions.

The Government’s view is that the Code of Practice under the Mental Capacity Act, which local authorities, the NHS and other relevant bodies will have to take account of, should set out what factors to consider in a necessary and proportionate assessment.

Other amendments from the Government were passed, including placing limits on the controversial role for care home managers under the LPS, replacing the requirement that the cared-for person be “of unsound mind” with one stating that he or she should have a mental disorder, as defined by the Mental Health Act, and extending the LPS to 16- and 17-year-olds.

Further amendments will be discussed at the next sitting of the report stage this week.

Last reviewed 28 November 2018