Legislation to replace Deprivation of Liberty Safeguards introduced

Executive summary

The Government has introduced the Mental Capacity (Amendment) Bill to the House of Lords as it seeks to replace the ‘Deprivation of Liberty Safeguards’ (DoLS). The Bill contains a new system based mainly on proposals from the Law Commission and known as ‘Liberty Protection Safeguards’ (LPS).

In detail

Hot on the heels of the Joint Committee on Human Rights’ report on the Law Commission proposals to reform the DoLS (read our update for more information here) the Government, to the surprise of everybody, introduced the Bill (click here for full details about the Bill’s planned legislative passage, including the full text of the Bill) to the House of Lords on 3 July 2018. According to the Government the reforms will:

• introduce a simpler process that involves families more and gives swifter access to assessments
• be less burdensome on people, carers, families and local authorities
• allow the NHS, rather than local authorities, to make decisions about their patients, allowing a more efficient and clearly accountable process
• consider restrictions of people’s liberties as part of their overall care package
• get rid of repeat assessments and authorisations when someone moves between a care home, hospital and ambulance as part of their treatment.

The Bill differs from the draft which was included in the Law Commission’s report, from March 2017 (read our update here). In particular, all the wider elements of the draft Bill have been removed, along with elements such as the codification of the concept of ‘advance consent.’ The Government Bill instead focusses on a variant of the Law Commission’s LPS. The Explanatory Notes don’t explain why this is; the Impact Assessment notes that “the Law Commission also proposed making some wider amendments to the Mental Capacity Act which we have decided not to legislate for at this point, as we think there are other effective levers to deliver improvement in these areas.”  This may be explored in more detail during the Bill’s second reading.

Main components of the Bill

Definition of deprivation of liberty

There is no statutory definition of deprivation of liberty, so the definition remains that contained in Article 5 of the European Convention on Human Rights, as interpreted by the Supreme Court in Cheshire West.

Interim/emergency deprivation of liberty

Section 4B of the Mental Capacity Act will be amended to provide express authority for a person to take steps to deprive another person of their liberty if four conditions are met. Broadly speaking, section 4B gives authority to take steps to deprive a person of their liberty in three circumstances:… READ FULL ARTICLE