In a decision which will trouble many (for instance the Joint Committee on Human Rights: see its 2022 report on human rights in care settings), has “deeply disappointed” Welsh Government, perhaps surprise almost as many, and no doubt please a few, the Government announced on 5 April 2023 that it would delay the implementation of the Mental Capacity (Amendment) Act 2019 until “beyond the life of this Parliament.”
I set out the announcement in full below:
Update on implementation of the LPS
Yesterday you will have seen the Government has set out its plans for adult social care reform in its publication of the Next steps to put People at the Heart of Care.
To enable us to focus on these critical priorities, the Government has taken the difficult decision to delay the implementation of the Liberty Protection Safeguards beyond the life of this Parliament. This was one of a number of decisions taken as part of prioritising work on social care. More detail can be found on plans to reform and improve adult social care here.
We recognise that this delay will be disappointing news for the people and organisations who have worked closely with us on the development of the LPS since the Mental Capacity (Amendment) Act was introduced in 2019. We would like to thank everyone who engaged with us on the development of the policy and during the consultation on the LPS. The detailed feedback we received has been invaluable.
During the LPS consultation, we received detailed feedback from stakeholders across the health and social care, voluntary and legal sectors, and the people affected by it. Many of those who responded to the consultation expressed support for the LPS and agreed that there is a need for a more streamlined and person-centred system. Though some responses to the consultation also suggested changes to the proposals in a number of ways which have been considered during the consultation analysis phase.
Although implementation of LPS has been delayed at this time, we plan to publish a summary of responses to the consultation in due course, which will set out further information about the feedback we received at consultation. We will update you via the LPS newsletter when the summary of responses is published.
In the meantime, the Deprivation of Liberty Safeguards remain an important system for authorising deprivations of liberty, and it is vital that health and social care providers continue to make applications in line with the Mental Capacity Act 2005 to ensure that the rights of those who may lack the relevant capacity are protected.
Changes to the LPS team
In line with the decision not to move forward with the LPS at this time, some members of the LPS team will begin moving to other areas of the Department in the coming weeks. In the short term, Laura Karan and Martin Teff will remain the key points of contact for the LPS and the DoLS. We will provide further updates on the future of the LPS team as soon as practicable.
As always, please do get in touch with us at email@example.com with any queries or comments.
Comment and implications
The most immediate effect that this has is that the Liberty Protection Safeguards are not going to come into force for the foreseeable future. There are also knock-on effects, including that the new version of s.4B will not come into force to provide much-needed ‘cover’ in emergency situations. And, at the time of writing, it is unclear what is going to happen in relation to those parts of the updated Mental Capacity Act Code of Practice that relate to the main body of the MCA and which are badly out of date (our informal attempt to highlight the most dangerous passages in the MCA Code, together with the DoLS Code, can be found here).
I have recorded a presentation about what to do now; by way of spoiler, it highlights:
- That the decision does not change the position in relation to the need to authorise deprivation of liberty, it simply means that we have to keep using the tools that we have, i.e. DoLS for care homes and hospitals for those over 18, and the Court of Protection for everyone and everywhere else (unless the Mental Health Act 1983 applies); and
- That there are elements of thinking that underpinned the LPS that can still be applied, especially the up-front consideration in care planning of capacity, best interests and the necessity and proportionality of depriving the person of their liberty.
- That I am duty-bound to note that someone, somewhere, is likely to want to bring before a court in short order whether it is defensible for non-means-tested legal aid to be available only where someone is subject to a DOLS authorisation and not where either (1) the person is awaiting a standard authorisation and any urgent authorisation has run out; or (2) authority to deprive them of their liberty is being sought from the Court of Protection under the so-called community DoL provisions. The first of these inequities would be eliminated entirely if LPS is implemented (the proposed regulations changing the legal aid provisions to give the right to non-means-tested legal aid from the point where the process of considering authorisation had started, and continuing thereafter), and the second would be massively reduced, as there would be so many fewer such orders sought.
It is perhaps also worth making two other points, especially for those who will no doubt be wondering about the amount of time and money expended so far:
- 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.
- Whether LPS will be taken forward is going to be a matter for the administration setting the direction for the next Parliament: factually, there is an election due next year.