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Written on 10th September 2018

A new Bill is currently making its way through parliament to replace the existing law which protects the rights of people who do not have the mental capacity to make decisions about their care.

Mental Capacity (Amendment) Bill

When a person lacks capacity to consent to their care arrangements including where they live and the type of care they receive a decision has to be made for them. This decision must be in their best interests and take into account their wishes and feelings.

Sometimes this involves reducing their independence or preventing them from leaving their place of residence and may amount to a “Deprivation of Liberty”. The right to liberty is a Human Right under Article 5 of the European Convention on Human Rights and as such any restriction on a person’s liberty must be lawfully authorised.

The current system governing these arrangements and ensuring there are safeguards in place was reviewed by the Law Commission in 2017. The report was highly critical of the current system as it had found that it was too complex and bureaucratic. It was not working as effectively as it could, with many applications to authorise care arrangements being submitted late. The consequence of this is that vulnerable people are being unlawfully deprived of their liberty in hospitals, care homes and even in their own homes. Clearly something has to change.

The government is now proposing to replace the existing scheme known as the “Deprivation of Liberty Safeguards” or “DoLs” with a new system which will be called the “Liberty Protection Safeguards”. A Bill is currently working its way through parliament with the aim of it being passed into law in 2021.

According to the Department of Health and Social Care the reforms aim to:

  • introduce a simpler process that involves families more and gives swifter access to assessments
  • be less burdensome on people, carers, families and local authorities
  • allow the NHS, rather than local authorities, to make decisions about their patients, allowing a more efficient and clearly accountable process
  • consider restrictions of people’s liberties as part of their overall care package
  • get rid of repeat assessments and authorisations when someone moves between a care home, hospital and ambulance as part of their treatment

Key Features

  • It will be possible to authorise an interim deprivation of liberty in three circumstances:

1. Where a decision relevant to whether there is authority to deprive the person of liberty is being sought from the Court of Protection;

2. Where steps are being taken (either by a responsible body or a care home manager) to obtain authorisation; or

3. In an emergency, e.g. where a patient is attempting to self-discharge or is refusing life-sustaining treatment.

  • The new scheme introduces a “responsible body” who will be required to authorise arrangements, this will be:

1. The “hospital manager” where the arrangements are carried out mainly in a hospital;

2. A CCG or Local Health Board in the case of arrangements carried out through NHS continuing health care (but not mainly in a hospital);

3. A local authority in all other cases, including where care is arranged by the local authority, and where care is provided to people paying for their own care

  • Before a responsible body can authorise the arrangements it must be satisfied that the following criteria is satisfied:

1. The person who is the subject of the arrangements lacks the capacity to consent to the arrangements;

2. The person is of unsound mind; and

3. The arrangements are necessary and proportionate.

  • Care Home managers must now arrange the relevant assessments and take the other necessary steps before an authorisation can be given by the responsible body for those whose arrangements are wholly or partly carried out in a care home.
  • The responsible body or care home will be required to consult with the person, their relatives, friends and carers in order to establish their wishes and feelings in relation to the arrangements.
  • A person who is not involved in the daily care of the individual concerned must carry out a pre-authorisation review as to whether the responsible body’s decision that the authorisation conditions are met is reasonable. Where a person is objecting, an “Approved Mental Capacity Professional” must carry out the review.
  • The individual concerned should be represented and supported by an “appropriate person” or Independent Mental Capacity Advocate (“IMCA”).
  • There will be ongoing safeguards including regular reviews. Authorisations can be renewed after the first year and then in longer periods of up to 3 years.
  • Mental Health patients in the community can be subject to a liberty protection safeguard as well as Mental Health Act requirements.

The Bill is not due to be brought into law until 2020 so further changes may yet be made. Watch out for the further articles on this topic.

How can we help?

If you have any concerns queries regarding the care arrangements of a person you may know then contact our specialist team for confidential and friend expert help and advice.

At Boyes Turner, our community care and court of protection teams are experienced in supporting individuals who lack capacity and their families through the legal, administrative and practical challenges that arise in relation to their care and residential arrangements. Our legal experts provide our clients with a range of levels of support, depending on the individual’s needs, from background legal advice and support in achieving appropriate levels of social care to managing local authority and ombudsman complaints or representing the individual and their family in judicial review proceedings. By ensuring that you understand the system and know your rights, we can help you obtain the right social care and support for your family member. 

For more information about how the community care and court of protection teams can help you or for a free initial discussion please contact them by email by email at