Mental Capacity (Amendment) Act receives Royal Assent – what next?
23rd May 2019
The Mental Capacity (Amendment) Act received Royal Assent on 16th May, with expectations that it will come into force in Spring 2020. It is hoped new systems in the Act will make authorising deprivations of liberty more efficient.
Why is this Act needed?
The Law Commission recommended that a new scheme was brought in to replace the current deprivation of liberty safeguards. The Cheshire West decision defined a deprivation of liberty as being where a person lacks capacity, is subject to continuous supervision and control and is not free to leave. This widened who could be subject to a deprivation of liberty to those living in the community in supported living accommodation or in their own home.
The Mental Capacity Act 2005 can only authorise deprivations of liberty for those in hospitals or care homes and any other deprivations of liberty (including for those aged 16 and 17) needed to be authorised by the Court of Protection.
The new system is meant to provide a more streamlined process for authorising deprivations of liberty for anyone over 16 wherever there are living or staying.
What does the new Act do?
The new Act introduces Schedule AA1 into the current Mental Capacity Act 2005 and this sets out the procedure for authorising deprivations of liberty in all places which are known as liberty protection safeguards (LPS).
Detailed guidance and further information about practical requirements will be set out in new regulations and a new Code of Practice which are yet to be published. There will not be a definition of deprivation of liberty within the new legislation but it is hoped that the new Code will provide examples of scenarios when someone may be considered to be deprived of their liberty.
Who can authorise a deprivation of liberty under the LPS?
Deprivations of liberty will be authorised by a responsible body. Who the responsible body is will be determined as in the following order:
- If the arrangements are carried out mainly in an NHS hospital, the hospital manager.
- If the arrangements are carried out mainly in a private hospital, the local authority.
- If the arrangements are carried out mainly through the provision of NHS Continuing Healthcare, the CCG.
- If none of the above apply, the local authority.
Where arrangements are wholly or partly carried out in a care home the responsible body must decide whether it or the care home manager carries out the authorisation.
Procedure for authorising a deprivation of liberty under the LPS
Prior to authorising a deprivation of liberty the responsible body must be satisfied that 3 authorisation conditions are met. These are:
- P lacks capacity.
- P has a mental disorder.
- The arrangements are necessary to prevent harm to P and are proportionate in relation to the likelihood and seriousness of the harm to P.
These conditions replace the 6 qualifying requirements used for standard authorisations and so reduce the number of assessments required.
A number of safeguards have been built in to the process. These are:
- The right for information to be provided as soon as practicable after a responsible body has authorised a DOL.
- Regular reviews of the authorisation by the responsible body. There are also statutory triggers for reviews.
- The right to challenge the DOL before the Court of Protection.
P must also be supported and represented by an appropriate person or an IMCA.
The Mental Capacity Act 2005 will be amended to give express authority for a person to take steps to deprive someone of their liberty on an interim or urgent basis. The following must apply:
- The steps proposed must be wholly or partly for the purposes of or consist wholly or partly for the purposes of giving life sustaining treatment or doing a vital act.
- The steps are necessary in order to give the life sustaining treatment or do the vital act.
- There is a reasonable belief that P lacks capacity and.
- A decision is being sought from the Court of Protection; or
- A responsible body is determining whether to authorise a deprivation of liberty; or
- It is an emergency.
If those circumstances are all satisfied then a person may take steps to deprive someone of their liberty. This will replace the urgent authorisations under the current system.
Renewing a deprivation of liberty
Unlike a standard authorisation an LPS can be renewed. The first authorisation is granted for up to one year. The first renewal can provide a further authorisation for up to one year. After that renewals can be granted for up to three years.
The legislation also allows for an authorisation to be varied if, for example, the responsible body has changed.
It is anticipated that there will be transitional arrangements put in place but details of these have not yet been published.
How we can help
We will keep you updated as and when further guidance and regulations are published. These will provide further information about how the LPS will be carried out in practice. In the meantime, if you have any questions , do not hesitate to get in touch with myself or a member of the team.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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