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What next for LPS and the Mental Capacity Act?

What next for LPS and the Mental Capacity Act?

The dust has now settled since the government’s announcement in April 2023, that the Liberty Protection Safeguards will not now be introduced this side of a general election, which it is anticipated will be held in autumn 2024. 

Our article from 6 April 2023 contained our reaction to that news and explored the implications.

The reality is that this means that the earliest that LPS could now be introduced would be 2026 or even 2027, but perhaps more likely that they will never come in to force at all.

The decision to delay has been criticised by many, including the Joint Committee on Human Rights and the Welsh government.  The Joint Committee on Human Rights highlighted the ongoing unlawful detention of thousands of individuals, delays in processing DoLS authorisations and consequently, the inability of those detained without authorisation to challenge this.  The Welsh Government expressed that it was “deeply disappointed” with the UK Government decision not to implement LPS at this time, a view that is likely to be shared by many stakeholders.

The disappointment has been acknowledged in the latest newsletter issued by the Department of Health and Social Care (DHSC) on 20 June 2023. In that same letter, the DHSC has committed to working with the Ministry of Justice to update the Mental Capacity Act 2005 (MCA) code of practice, to ensure that changes in case law and good practice since its publication in 2007 are incorporated, and to reflect the feedback stakeholders have provided both before and during the consultation. The timescales and plans for this are yet to be announced but this assurance will be welcomed by all organisations that are impacted by the MCA.

Understandably, there was a lot of focus on the LPS part of the draft Code of Practice. However, significant parts of the draft code were not about the LPS but about other parts of the MCA. We identified three key themes arising from the new draft code:

  • The legal angle – it captured key case law over the last 15 years;
  • The practical angle – it addressed developments in the ways of working and good practice since the MCA came into force in 2007 and was scattered with new case scenarios; and
  • Tackling the tricky concepts – it aimed to address the more challenging concepts which have emerged over the years including assessing capacity, fluctuating capacity and executive functioning as well as emergency medical treatment.

It is hoped that progress can now be made towards updating these aspects of the code to ensure that it provides up to date guidance.  We will ensure that we keep you updated with all the key developments moving forward.

Please feel free to contact us if you have any questions or would like to explore your organisation’s training needs.

Mental capacity, DoLS and Court of Protection

Leading experts 

Hill Dickinson LLP are the national leading experts on the Mental Capacity Act 2005 (MCA) and deprivation of liberty (DoLS), with more lawyers independently ranked in directories as leading practitioners in this field than any other firm.

Our lawyers have been involved in the leading case law, including at Court of Appeal and in the Supreme Court, as well as being involved in the development of national policy, guidance and training.   

You will be aware of the announcement on 5 April 2023 by the Department of Health and Social Care that the implementation of the Liberty Protection Safeguards (LPS) will not go ahead this side of a general election (anticipated to be in Autumn 2024).

This leaves us with all the challenges with the current system that LPS was supposed to address, in particular:

  • Dealing with those outside the scope of DoLS – people deprived of their liberty in the community or under the age of 18.
  • Even where DoLS applies – over the age of 18 and only in care homes and hospitals – the gulf between the demand on the system and its resources, leaving a huge backlog and a delay in authorisations.
  • Hospital cases, in particular, are not typically prioritised by local authorities, and there is also real uncertainty in how to apply the law on deprivation of liberty in a medical treatment context.  

To view our video resources relating to MCA/DoLS click here