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).
We've responded to the government’s consultation on the draft code that will clarify how the LPS will work in practice.
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.
Our Mental Health and Disability Committee will continue lobbying on your behalf to influence the code of practice.
What this means for solicitors
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.
What we’re doing
- July 2022 – we responded to the government's proposed changes to the Mental Capacity Act code of practice and implementation of the liberty protection safeguards
- December 2018 – we responded to the House of Commons second reading of the amendment bill, showing our concerns about the bill as it removes existing safeguards for vulnerable people
- November 2018 – we recommended amendments to the bill when it reached the House of Lords report stage
- September 2018 – we thought the amendment bill was not fit for purpose and recommended changes ahead of the House of Lords committee stage
Get involved
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.