Mental capacity and deprivation of liberty safeguards

Changes to the law on deprivation of liberty

BSL Support

The Mental Capacity Amendment Act (Liberty Protection Safeguards) (MC(A)A) received Royal Assent on 16 May 2019. This is planned to come into force in April 2022.

This means that The DoLS will be replaced by a new scheme called the Liberty Protection Safeguards (LPS).

The new LPS like DoLS, will provide a system for authorising care arrangements in England and Wales that require a person to be deprived of their liberty, in line with the UK’s obligations under article 5 of the European Convention on Human Rights.

LPS will differ from the current DoLS process in the following ways:

Feature

DoLs

LPS

Settings

Applies just in care homes or hospitals.

It will apply in any setting.

Responsible body that sign off the authorisation

The local authorities in all cases.

Will differs by setting:

Local authorities will be responsible for cases in social care settings or people’s homes.

They may give care home managers responsibility for overseeing cases in their settings, which will involve commissioning assessments, arranging consultation and reporting back to the authority on whether the authorisation conditions had been met – though sign-off would remain the authority’s responsibility.

 

Hospital managers for cases in their own settings.

English clinical commissioning groups or Welsh local health boards for continuing healthcare cases.

Age

Aged 18 or over.

Aged 16 or over.

tests for an authorisation

Are similar under the LPS and DoLS, however:

Arrangements are in the person's best interests and necessary to prevent harm to them.

it will no longer be required that the arrangements are in the person’s best interests under the LPS.

 

Approved Mental Capacity Professional (AMCP)

N/A

AMCP is a new role and will carry out assessments where it is believed that the person is objecting to the care arrangements or where they are placed in an independent hospital.

Assessments

Assessments are carried out by specially trained and qualified assessors - best interests and mental health assessors.

Assessments will no longer have to be carried out by specially trained and qualified assessors.

Though assessors would need to have appropriate experience and knowledge.

The only role that requires a distinct qualification and particular training under the LPS is that of the AMCP.

Duration of Authorisation

Limit of 12 months and not renewable. A fresh authorisation is required after one expires.

Will have an initial limit of 12 months they will be renewable.

The first renewal will have a limit of 12 months, subsequent renewals could be for up to three years.

At present the code of practice is being written and more detail about how the scheme will run is due to be published in Spring 2020. Check this page for updates.