Mental Capacity Law & Deprivations of Liberty

In May 2013, the Select Committee on the Mental Capacity Act 2005 was established to conduct post-legislative scrutiny on the Act and see if it was working as intended. We submitted written evidence to the Committee, saying it should recommend an urgent review of the implementation of the Deprivation of Liberty Safeguards (DoLS). We raised concerns that the inappropriate use of DoLS poses significant risks to the rights of people in vulnerable situations. Our now-CEO, Sanchita, also gave oral evidence to the Committee.

In February 2018, the Joint Committee on Human Rights (JCHR) launched an inquiry into reform of the Deprivation of Liberty safeguards and the Law Commission’s proposal that the scheme should be replaced with Liberty Protection Safeguards. These would authorise particular arrangements for care or treatment rather than a more general deprivation of liberty. We co-ordinated a joint submission to the JCHR from 14 organisations welcoming this suggestion and agreed that the existing system is not fit for purpose. However, we emphasised that any proposed replacement should align with our human rights legal framework in the UK – most notably outlined in the Cheshire West judgment.

In July 2018, the Mental Capacity (Amendment) Bill was introduced in the House of Lords. The Bill introduced a scheme called the Liberty Protection Safeguards. This is set to replace the current Deprivation of Liberty Safeguards. The original Bill suggested a new definition of “deprivation of liberty” which was different to the one established in human rights law. We worked with civil society partners including Liberty, Alzheimer’s Society, MIND, Rethink Mental Illness and Compassion in Dying to change the Bill by attending meetings and forums, publishing open letters and briefings, and amplifying the voices of people with lived experience. The UK Government eventually agreed to keep Section 64(5) of the Mental Capacity Act which says deprivation of liberty has the same meaning as in the Human Rights Act. The Government also agreed to include a duty on hospitals and local authorities to provide patients with information about their rights without delay.  Parliament passed the Mental Capacity (Amendment) Act in May 2019. 

Despite the energy and evidence that we and our colleagues from campaign, advocacy and support groups put forward, Parliament failed to improve the law in some crucial areas. For example, the advocacy arrangements in the Amendment Act are considerably less than under the current DoLS system and remain significantly weaker than those proposed by the Law Commission in their review of this area of law. An automatic right to an independent advocate would support people to exercise choice and control (the Article 8 right to private life) and to challenge unfair decisions. Sadly, the new Act does not go as far as this.

The Liberty Protection Safeguards were meant to be implemented in October 2020 but have been significantly delayed. In April 2023, the UK Government announced that the implementation of the Liberty Protection Safeguards has been delayed “beyond the life of this Parliament”.