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Deprivation of Liberty and the Mental Capacity (Amendment) Act 2019

When can a deprivation of liberty occur?

Deprivation of liberty is the term used when a person is detained in a care home or hospital to receive care or treatment. The detention will be a breach of the person’s human rights unless an authorized process is used.

The Mental Capacity Act 2005 introduced rules for authorizing the detention of people who need care or medical treatment who lack capacity to authorizing arrangements for the care and medical treatment of people who can’t give consent. Anyone in need of care or medical treatment which involved depriving them of their liberty was given certain protections under that Act. The protections were called deprivation of liberty safeguards (DoLS).

Families and professionals soon began to find flaws in the protection arrangements. The main criticisms were that the DoLS were too complex and bureaucratic. The Law Commission produced a report suggesting new legislation to amend the safeguarding arrangements. The result is the Mental Capacity (Amendment) Act 2019.

What changes do the 2019 Act make to the DoLS laws?

The Mental Capacity (Amendment) Act 2019 has changed the authorizing arrangments for a deprivation of liberty of a person who can’t give consent.

Section 2 of the amending Act gives express authority for a person to take steps to deprive an incapacitated person of their liberty provided that certain conditions are met:

  1. the person authorizing the arrangement must have reasonable grounds for believing the individual doesn’t have the capacity to consent to the arrangement;
  2. the deprivation of liberty must be necessary either because the person needs life-sustaining treatment or to avoid a serious deterioration in their condition.

There are 3 circumstances under the Mental Capacity (Amendment) Act 2019 in which there will be authority for depriving a person of their liberty: (1) where there is authority from a court; (2) where a responsible body is determining whether to authorize arrangements under Schedule AA1; or (3) in cases of an emergency.

If a responsible body is going to authorize the arrangements, it must be satisfied that : (1) the person who is to be detained doesn’t have the capacity to consent to the arrangements; (2) the person has a mental disorder; and (3) the deprivation of liberty arrangements are necessary and proportionate.

The arrangements must be to prevent harm to the person and be proportionate in relation to the likelihood of them being harmed and the seriousness of the harm to the person.

The new safeguards

There is a new set of safeguards, sometimes referred to as Liberty Protection Safeguards. The Act amends the 2005 Mental Capacity Act by introducing a new Schedule AA1. This contains the details of the replacement arrangements. These include regular reviews of the authorisation by the responsible body e.g. a local authority or care home, and there is a right to challenge the authorization through the Court of Protection ( inserted by section 3).

Another important change made by the new legislation is that whereas DoLS only applied in hospitals and care homes, the new rules also apply in wider settings. LPS are also not restricted to places where the person is living; so authorisation could cover arrangements such as day centres or transport.

Removing LPS authorisation

The legal right to challenge a Liberty Protection Safeguards authorisation has to be made to the Court of Protection. The court can make an order that varies or terminates the authorisation. The court can also order the responsible body to alter the authorisation.