Mental Capacity Act and liberty protection safeguards

An amendment to the Mental Capacity Act 2005 will introduce liberty protection safeguards (LPS) to replace the current deprivation of liberty safeguards (DoLS) in England and Wales.

The Act, which will become the Mental Capacity (Amendment) Act 2019, received Royal Assent on 16 May 2019. The changes are likely to be implemented in spring 2020 and the government will publish a series of regulations and a code of practice, which will set out the details of how the safeguards will work.

In the meantime, members need to be aware of the forthcoming changes, explained below.

Why the change?

The current DoLS scheme was introduced in 2009. Its aim was to ensure safeguards were in place so that people being treated in a care home or hospital who lacked capacity were not deprived of their liberty, except in specific circumstances and in their best interests. However, the DoLS was criticised for being overly complex and bureaucratic.

The Law Commission was asked to review the safeguards in 2014. It found that the safeguards were not always used when they should have been, potentially putting people at risk and also leaving care providers vulnerable to criticism and decisions vulnerable to legal challenge.

What's new?

The change in legislation means that LPS can be applied not only to care homes and hospitals, but also in other settings, such as supported living and private and domestic settings. Another change is that LPS will not only apply to those aged 18 and over but also to 16 and 17-year olds. This brings it in line with the rest of the Mental Capacity Act (with a small number of exceptions).

When the changes are implemented, a court order will no longer be required to authorise the deprivation of liberty for a 16 or 17 year old who lacks capacity.

A 'responsible body' will replace a 'supervisory body', and a hierarchy sets out who, or what organisation, can fulfil this role. Criteria known as 'authorisation conditions' must be met before LPS can be applied to a patient - for example, detailing who should be consulted in order to establish the person's wishes or feelings.

Unlike the DoLS, a responsible body can renew an authorisation under LPS provided it is satisfied that the authorisation conditions continue to be met and a change in the person's condition is unlikely to occur.

It has also been confirmed that the DoLS will run parallel to the LPS for a year after it is implemented, to allow for an easier transition.

This guidance was correct at publication 13/06/2019. It is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.

Kathryn Leask MDU medico-legal adviser

by Dr Kathryn Leask Medico-legal adviser

BSc (Hons) MBChB (Hons) LLB MA MRCPCH FFFLM DMedEth

Kathryn has been a medico-legal adviser with the MDU since 2007 and is a team leader, trainer and mentor in the medical advisory department. Before joining the MDU, she worked in paediatrics gaining her MRCPCH in 2002 and did her specialty training in clinical genetics. She has an MA in Health Care Ethics and Law, a Bachelor of Law and a Professional Doctorate in Medical Ethics. She is also a fellow of the Faculty of Forensic and Legal Medicine and has previously been an examiner and Deputy Chief Examiner for the faculty exam. Kathryn is currently a member of the faculty's Training and Education Subcommittee.

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