No definition of deprivation of liberty in Bill replacing DoLS

The Government has abandoned its initial plans to include a definition of ‘deprivation of liberty’ (‘DoL’) in the Mental Capacity (Amendment) Bill

Executive summary

The Government has abandoned its initial plans to include a definition of ‘deprivation of liberty’ (‘DoL’) in the Mental Capacity (Amendment) Bill (‘the Bill’), currently making its way through Parliament, which is the legislation that will replace the deprivation of liberty safeguards with the new Liberty Protection Safeguards. Instead, a DoL will still be defined by reference to Article 5 of the European Convention on Human Rights (‘Article 5’), as it is under section 64(5) of the Mental Capacity Act 2005 (‘MCA’), but with no clarification of the meaning contained within the Bill.

Background

In the initial phase of what is known as parliamentary ‘ping pong’ in February 2019, the House of Lords proposed an alternative ‘positive’ definition to the Government’s deprivation of DoL which had set out the criteria for assessing whether someone was not deprived of their liberty.

In response, the Government objected to the proposed Lords’ definition on the basis that it did not link DoL to Article 5, with the attendant risk that people who fell outside the parliamentary definition but within the Article 5 definition could not have their DoL authorised under the MCA, except by the court.

In this latest development, however, the Government has accepted what it referred to as ‘concerns’ and confirmed that DoL will continued to be as defined under Article 5 with no clarification of the meaning in the Bill. Instead, the code of practice, reflecting the relevant case law, will be used to show when a DoL is or is not happening. The latest Government proposals will also require review of the code of practice within three years of the Bill coming in to force and every five years thereafter.    

Conclusions and next steps

The Government’s amendments were accepted unopposed by the House of Commons on 2 April so the Bill now returns to the House of Lords. As the Bill moves slowly but surely towards its conclusion, it is likely to be in force in early 2020. Local authorities, CCGs and care homes should all be making suitable preparations for the new legislation now.

For further information about Weightmans LLP or to discuss any of the issues in this update, please contact Morris Hill, Associate on 0151 242 7990 or morris.hill@weightmans.com, or Ken Slade, Associate on 0151 242 7953 or ken.slade@weightmans.com

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