The Government has announced today, 5 April 2023, a “delay” to the implementation of the Mental Capacity (Amendment) Act 2019 which was due to amend the Mental Capacity Act 2005 and replace the heavily criticised deprivation of liberty safeguards (DoLS) with a new framework for authorising deprivation of liberty, the Liberty Protection Safeguards (LPS).
The decision will be hugely disappointing for health and care organisations who have been working on the development of the LPS both in terms of planning and policy and contributing to the recent consultation.
We understand that this was one of several decisions taken as part of “prioritising work on social care", in the context of the Government’s publication of Next Steps to put People at the Heart of Care which sets out its plans to reform adult social care.
Tim Spencer Lane who has been closely involved with the policy team at the Department of Health and Social Care has suggested two particular reasons for the “delay”:
- Current pressures on NHS services; one of the key reforms under the LPS would have been to give hospital trusts and Integrated Care Boards new responsibility for authorising deprivations of liberty.
- Significant pressures on social care budgets. Despite promising long-term financial cost savings for local authorities and the NHS, the LPS did come with start-up costs of around £86m, which is unlikely to have found favour with the Treasury.
In this “interim” period, DoLS remains the system for authorising a deprivation of liberty. It is important that care homes, Integrated Care Boards and health and care providers continue to make applications in line with the Mental Capacity Act 2005, to ensure that the rights of the vulnerable who lack capacity are protected.
And a final note – the time spent applying LPS thinking to your organisation’s approach is not time wasted as barrister, Alex Ruck Keene KC explains in his blog (which is sage advice):
“Those organisations who have started work towards preparing for LPS have undertaken vital auditing work of such things as awareness of the MCA amongst those working with 16/17 year olds; the actual and likely numbers of deprivations of liberty falling outside the current DoLS scheme; and relative responsibility for authorising as between local authorities and ICBs in jointly-funded arrangements. None of this work has been wasted, because all of it is establishing the cohort of those who need to have their deprivation of liberty authorised.”
Do get in touch if you’d like to discuss the delay and what this means for your organisation – we’ve an expert and friendly team ready to support you.
Our content explained
Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.