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The Mental Capacity (Amendment) Bill ("the Bill") has now been passed by both the House of Commons and House of Lords, meaning that it will become law following Royal Assent.

The Bill replaces the existing Deprivation of Liberty Safeguards ("DoLS") regime with a new system called Liberty Protection Safeguards ("LPS").

There is no statutory definition of a deprivation of liberty, however a Supreme Court judgment has suggested that there are two key questions to consider:

1. Is the person subject to continuous supervision and control?

2. Is the person free to leave?

This system was created to safeguard people who may not have mental capacity to make decisions for themselves.

Under the DoLS regime, six assessments are carried out in relation to people living in care homes and hospitals before that person may be subject to a deprivation of liberty. For example if it was in the person's best interest to deprive them of their liberty.

The LPS has been introduced to provide a more efficient alternative to DoLS.

The main changes of the new system are:-

  • They now apply to people over the age of 16, rather than 18 and over;
  • They can be used in other settings such as supported living and in the home;
  • They do not just relate to where a person resides, but can be used for example in relation to transport arrangements;
  • There is no "supervisory body", rather there is a "responsible body" who change depending on where the arrangements are carried out; and
  • They will now be renewable and in certain circumstances could last up to three years

Previous drafts of the Bill included a definition of what constitutes a deprivation of liberty, however this was ultimately removed due to not being in line with Article 5 of the European Convention on Human Rights. Instead a non-statutory code of practice will be issued which will contain guidance, this lack of clarity has been criticised.

It remains to be seen whether the changes to be introduced by the Bill will provide an adequate balance between safeguarding the interests of vulnerable people and allowing a heavily burdened system to function properly.

If you would like to discuss any of the issues raised in this blog, please contact our Mental Health team on 01422 330 700 or fill in our online enquiry form.