A Welsh Government consultation was held between 17 March 2022 and 14 July 2022 on four sets of draft Regulations which will support the implementation of the new Liberty Protection Safeguards in Wales (the LPS), as introduced by the Mental Capacity (Amendment) Act 2019. The Welsh Government also consulted on supporting Impact Assessments, and a draft National Minimum Data Set for the LPS.
A summary of the consultation responses was published on 14 June 2023. The introduction sets out a number of key messages that were repeated across responses in relation to more than one of the consultation questions. These included:
- The need for further clarification on how the Regulations will work in practice and concerns that the Regulations are not supporting the intended reforms, particularly around reducing bureaucracy; embedding the principles of the MCA across care, support and treatment planning; and supporting the rights of the person.
- Questions around cross-border issues and associated practicalities around implementation, workforce, and monitoring and reporting.
- Concern that the Regulatory Impact Assessment underestimates costs associated with undertaking assessments, determinations and pre-authorisation reviews; the role of the AMCP; the role of the IMCA; plans for monitoring and reporting; and plans for workforce development and training.
- Concern over the definition of a deprivation of liberty included in the draft Mental Capacity Act Code of Practice (published for consultation by the UK Government, alongside draft Regulations for England) and associated impacts on the implementation of the safeguards in Wales.
- Welsh Language: Support for the active offer and the needing to strengthen commitments regarding preferred language, and build workforce capacity.
Picking up for present purposes on the penultimate bullet point, it is interesting to note (from page 59), under the heading “Concerns regarding the Code of Practice and how this is does not protect the rights of the cared for person” the following:
- Specific concerns raised in relation to the definition of a deprivation, set out in Chapter 12 of the Code of Practice.
- The rights of the person and service users can only be protected when there is a clear definition of what is classed as a deprivation of liberty. Respondents “not convinced we have achieved that within the proposed legislation”.
- The Acid Test appears to be altered which questions if the safeguards will be at a level required or as Cheshire West intended.
- The new interpretation of the Acid Test takes many vulnerable people who lack capacity out of the reach of Article 5, yet still allows for intensely restrictive care with no right to appeal or independent scrutiny.
- Concerns raised that some people will not come under LPS (whereas they would come under DoLS). This means they will not be offered the same right to appeal and have their case heard in court.
- Concerns raised in relation to people who may not meet the “threshold” which would result in a deprivation of liberty being authorised. Greater clarity needed on this as there may still be restrictive practice taking place.
Whilst we wait for further news from DHSC as to how they intend to proceed in England & Wales – including the equivalent summary of consultation responses (and a response to the letter from the Joint Committee on Human Rights), it is perhaps worth setting out the concluding section of the Welsh Government consultation response document in full:
Welsh Government Response and Next Steps
107. The UK Government has recently announced their decision not to implement the LPS within this Parliament. Welsh Government has issued a Written Statement expressing disappointment at this decision.
108. The consultation responses from stakeholders in Wales on the draft Regulations and supporting impact assessments have provided a wealth of information that will help inform future policy decisions, when any planned implementation of the LPS is confirmed by the UK Government. It may be necessary to undertake a further consultation on the Regulations following any decision by UK Government to progress with the LPS in the future.
109. We all share the goal to continue to integrate and embed the principles of the Mental Capacity Act 2005 and the Mental Capacity (Amendment) Act 2019 into everyday care, support or treatment arrangements to avoid unnecessary duplication and bureaucracy for individuals and their families, and equally for practitioners, enabling them to share and use information legally and appropriately. Despite the recent decision of the UK Government, this remains our goal and our ambition for the people of Wales. As highlighted in the recent Written Statement, the views and the work of everyone who helped us develop and shape the consultation products, as well as everyone who offered views on the consultation, are not wasted. They have been recorded and retained to support us to protect and enhance people’s rights.
110. It has been widely recognised that there are number of challenges associated with the current DoLS system, particularly in light of the increases in the number of DoLS applications – which have been seen across England and Wales.
111. In light of the UK Government decision, we will need to consider how we strengthen the current DoLS system in Wales and continue to protect and promote the human rights of those people who lack mental capacity. Stakeholders in Wales have provided significant evidence and support to help us shape the LPS for Wales. Welsh Government will be re-engaging with stakeholders so that we can listen and hear what we can do now to address some of the current challenges within DoLS. This will support the current application of DoLS, and strengthen the position that Wales will be in to transition to the LPS in the future.
112. It is imperative that the momentum generated through the contributions of stakeholders in Wales is not lost. Welsh Government will continue to work with stakeholders to improve services for those who lack mental capacity, whilst preparing for any future decision by UK Government to implement the necessary reforms identified in the Mental Capacity (Amendment) Act 2019.
 It is nerdily important to point out that a Code of Practice cannot create law, as opposed to amplifying what the law is (and, here, the law relating to deprivation of liberty is as set down by the courts). Although it is perhaps telling here that the Michelle Dyson, Director General for Adult Social Care at the Department of Health and Social Care, told the Joint Committee on Human Rights in May 2022: “We are looking at a new definition of what should constitute a deprivation of liberty – we have consulted on that and will wait to see what comes back….”