The “Mental Capacity (Amendment) Act 2019” received Royal Assent on 16 May, introducing a new system for authorising deprivations of liberty in care, the Liberty Protection Safeguards (LPS), and replacing Deprivation of Liberty Safeguards (DoLS).

The Act amends the “Mental Capacity Act 2005” with regard to procedures in accordance with which a person may be deprived of liberty where the person lacks capacity to consent, and for connected purposes.

The implementation date for the LPS is still to be confirmed, but Spring 2020 was previously agreed to be the likely time frame.

The DoLS will run alongside the LPS for a year after implementation to ease the transition of existing cases, and a series of regulations and a code of practice, which will go out to consultation, will outline details of how the LPS will work.

The new system is designed to streamline processes and reduce the resulting backlog of DoLS applications. During the process of passage through Parliament it received criticism for removing essential safeguards and posing a threat to human rights.

However, the legislation changed significantly since it was introduced in July 2018, including the scaling back of the responsibilities of care home managers, the Government’s decision to introduce and then drop a deprivation of liberty definition from the legislation, and an increased role for approved mental capacity professionals.

Mental health charity Mind’s Head of Legal Michael Henson-Webb welcomed some aspects of the new legislation, saying the overhaul of DoLS was an opportunity to fix a system that was not fit-for-purpose and left thousands of people, including those of us with mental health problems, without vital legal protection.

However, he said: “By streamlining the process, a number of important safeguards have been removed. In addition, recommendations made by the Law Commission and others to make sure those who lack capacity have more involvement in decisions made about their own care and treatment have largely been ignored.”

He added: “It has also been concerning that this Bill was drafted without sight of the independent Review of the Mental Health Act and has now been made an Act before the Government has formally responded to that Review. If the recommendations of the Review are followed, approximately 20,000 patients who are not objecting to their treatment could be moved from the Mental Health Act to the Mental Capacity Act. We need to see equivalent safeguards in place so that regardless of which Act you’re treated under, you receive the treatment you need that’s in your best interests, if you’re not deemed to have capacity to make decisions at this time. We’d urge the Government to address these outstanding concerns.”

The “Mental Capacity (Amendment) Act 2019” is available at www.legislation.gov.uk.

Last reviewed 21 May 2019