Private client

Mental Capacity (Amendment) Act 2019

The Mental Capacity Act 2005 includes the Deprivation of Liberty Safeguards (DoLS), which protect people who do not have the mental capacity to consent to treatment.

The government consulted on replacing the DoLS in the Mental Capacity (Amendment) Bill in 2018, which passed into law in May 2019.

Under the Mental Capacity (Amendment) Act 2019, the DoLS will be replaced by the Liberty Protection Safeguards (LPS). These are expected to take effect in spring 2020.

The government is drafting a code of practice that will clarify how the LPS will work in practice. A draft is due to be published for consultation within the next few months.

Our view

We opposed the government’s initial proposals in the amendment bill because we believed it would weaken safeguards provided under the existing DoLS.

We recommended amending the bill to improve safeguards, including:

  • putting the vulnerable person at the centre of decision-making – for example, taking the person’s wishes and feelings into account
  • making sure the vulnerable person has the right to challenge the deprivation of liberty authorisation
  • making the role of the care home manager clearer to avoid conflict of interest
  • limiting the length of the authorisation for the deprivation of a person’s liberty

Although the government has made some concessions, we’re still concerned about how the act will affect the rights of over 300,000 people who have diminished capacity and may be subject to restrictive measures.

Notably, 16- and 17-year-olds have been brought into the LPS regime. As a result, they may be subject to watered-down protections under the Care Act 2014 and Children Act 1989.

The code of practice will give us more detail about how the act will be implemented. It’s expected to have a definition of the deprivation of liberty.

Our Mental Health and Disability Committee will continue lobbying on your behalf while the code is being drafted.

What this means for solicitors

We’ll update you when the new code of practice for the LPS has been created and the consultation opens.

The government has confirmed that the DoLS and LPS will run alongside each other for up to a year, so that people subject to the DoLS can be transferred over to the LPS smoothly.

Read more about the LPS

What we’re doing

Get involved

The government consultation on replacing the DoLS is now closed.

If you’d like to get involved in our work on this topic, you can find out more about our Mental Health and Disability Committee.

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