New deprivation of liberty legislation – 11 things you need to know

May 17th, 2019 by Hannah Slarks

Yesterday (16 May 2019) royal assent was given to the Mental Capacity (Amendment) Act 2019. This amends the Mental Capacity Act 2005 (“MCA”). The amendments introduce the new Liberty Protection Safeguards. The Act is designed to reduce the strain on the deprivation of liberty safeguards system since Cheshire West.

This blog does not cover the Court of Protection in detail. However, the new regime will loom large for all practitioners in community care.  Always eager to help, the team at 11KBW offers you 11 key things that you need to know about it:1. No new definition of deprivation of liberty

Parliament debated introducing a new definition of deprivation of liberty (“DoL”).  However, in the end, no definition could command a majority.  The definition remains the same.  If someone is deprived of their liberty for the purposes of Article 5, they will be deprived of their liberty for the purposes of MCA.

2. New “Liberty Protection Safeguards”

The Deprivation of Liberty Safeguards (“DoLS”) will be replaced by the new Liberty Protection Safeguards (“LPS”).  The LPS will be in the new Schedule AA1 of the MCA.

3. New interim authority for DoL

Under the LPS, interim authority for a DoL can be given pending authorisation from the CoP or under the LPS, or in an emergency.  This will give some legal status to the (currently enormous) backlog of cases waiting for authorisation.

4. New “responsible bodies”

The Act removes the old concepts of “managing authority” and “supervisory body”.  Instead, we have only the “responsible body”, which is responsible for commissioning reports and giving authorisations.  If the DoL is mainly in an NHS hospital, this will be a hospital manager.  If the DoL is under continuing healthcare, mainly outside hospital, this be the CCG or local health board.  Otherwise, it will be the local authority.

 5. New role for care home managers

Where a local authority is the responsible body, it has a power to delegate responsibilities to managers of care homes. This could significantly reduce the workload for local authorities.  However, concerns have been expressed about the capacity of care home managers to take on this work.

6. Pre-authorisation review

A pre-authorisation review will need to be undertaken by a person who is not involved in the treatment or day-to-day care of the individual.  They must review the relevant reports.  They must then decide whether it would be reasonable to conclude that the conditions for a DoL are met.  If the person deprived of their liberty objects to the DoL, the review must be carried out by an approved mental capacity professional (“AMCP”).  An AMCP must also conduct the review if the DoL is in a private hospital.  This is designed to avoid conflicts of interest where the hospital has a financial incentive to approve the DoL.  Oddly, an AMCP is not required to undertake the review for a private care home.

7. Reduced role for IMCAs

If the person deprived of their liberty has capacity to request an IMCA, they will only have one if they request it.  If they lack capacity to request an IMCA, there’s a new best interests test as to whether they get one.  This is another strange element of the regime – It is difficult to see when it would not be in their best interests to have one.  Even if these conditions are met, there is no unqualified duty to appoint an IMCA. The duty is then to “take all reasonable steps to appoint an IMCA”.  We do not yet know whether limited resources would excuse a failure to appoint an IMCA.

8. Reports can be re-used where appropriate

Responsible bodies will be permitted to reconsider previous reports on capacity and mental disorder, where appropriate.

9. New three year renewal periods

Under the old law, deprivations of liberty had to be renewed annually.  It will now be possible for renewal periods to last as long as three years.

10. No date for implementation

We still do not have a date for when the Act will come into force.  However, the word on the street is Spring 2020.

11. More details to follow…

We expect to see Regulations and a new Code of Practice filling in a lot of the detail.  This should include practical details about the LPS.  The Code of Practice may also include some attempt to redefine deprivation of liberty, although the Act has not addressed this.


Hannah Slarks

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