The law is changing around Deprivation of Liberty Safeguards. Here’s what you need to know:

The Mental Capacity (Amendment) Bill has recently passed through Parliament, with Liberty Protection Safeguards due to come into force in 2020. The Bill amends the Mental Capacity Act 2005, which provides a statutory framework for people who lack capacity to ake decisions for themselves.

This will replace the current Deprivation of Liberty Safeguards (DoLS). These safeguards exist to make sure that people in care homes and hospitals are looked after in a way that does not inappropriately restrict their freedom.

What changes can we expect?

Some of the main changes from the current DoLS scheme are:

• LPS would apply to 16-17 year olds and also to domestic settings such as supported living and someone’s own home.

• The assessments will look at whether the restrictions are ‘necessary and proportionate’ rather than whether they are in the best interests of the person.

• LPS authorisations could be granted for up to three years once they have had two authorisations (it won't be up to three years on the first authorisation).

• Reference to a person being “of unsound mind”, one of the three original requirements that must be met before a person is deprived of their liberty, was removed from the bill and replaced with the person having a mental disorder.

What else?

The Bill was originally set to include a new statutory definition of ‘deprivation of liberty.’ However, this has now been dropped. The proposed definition, which set out when a person would not be deprived of their liberty, was overturned by critics, who said it was “very difficult to understand”.

With Parliament unable to agree upon a definition, the government decided to remove the definition completely, which was approved by the Lords.

Care Home Manager’s roles have also been scaled back; originally the Bill had given the manager responsibility for almost the entire process, however with conflicting concerns around the financial health of the home and the service user’s rights, as well as questions as to whether the Care Home Manager was knowledgeable enough, changes were made.

The government instead amended the Bill to give local authorities the option of passing these responsibilities to the manager or undertaking the duties themselves. Care Home Managers will also not be able to appoint anyone with a ‘prescribed connection’ to the home to carry out assessments, in order to ensure the assessor is completely independent.

What about the right to an Advocate?

The Bill still says that a person under LPS does not have an automatic right to an Independent Advocate, but that this is a best interests decision.

During debate in both Houses, the government responded to concerns by stating that the new Mental Capacity Act Code of Practice would cover what was not expressly stated in the Bill.

What happens now?

Following the passage of the bill, the government will draft a series of regulations and produce a code of practice – which will be subject to consultation – setting out the detail of how the LPS will work.

The government has confirmed that the DoLS will run alongside the LPS for a year after implementation to ease the transition of existing cases.

Further reading