Abstract
<p>The Mental Capacity (Amendment) Act 2019 will introduce a new framework––the Liberty Protection Safeguards (LPS)––for authorising arrangements giving rise to a deprivation of liberty to enable the care and treatment of people who lack capacity to consent to them in England and Wales. The LPS will replace the heavily criticised Mental Capacity Act 2005 deprivation of liberty safeguards (MCA DoLS). The new scheme must provide detention safeguards on an unprecedented scale and across a much more diverse range of settings than traditional detention frameworks linked to mental disability. Accordingly, the LPS are highly flexible, and grant detaining authorities considerable discretion in how they perform this safeguarding function. This review outlines the background to the 2019 amendments to the MCA, and contrasts the LPS with the DoLS. It argues that although the DoLS were in need of reform, the new scheme also fails to deliver adequate detention safeguards, and fails to engage with the pivotal question: what are these safeguards for?</p><p>Keywords: Mental Capacity (Amendment) Act 2019; Mental Capacity Act 2005; deprivation of liberty safeguards; liberty protection safeguards; article 5 European Convention on Human Rights; P v Cheshire West and Chester Council and another; P and Q v Surrey County Council [2014] UKSC 19; [2014] A.C. 896; [2014] H.R.L.R. 13</p>
Highlights
The Mental Capacity (Amendment) Act 2019 was supposed to be a ‘really small, uncontroversial’ Bill,[1] one the whips could safely steer through a febrile parliamentary session engulfed by Brexit-related chaos
124 Mental Capacity Act 2005 (MCA) Sch AA1 s17(i), defined s3. Those in other settings than the care home. This is integral to the ‘least restriction’ principle contained in the MCA, deprivation of liberty safeguards (DoLS) and Liberty Protection Safeguards (LPS), and is a necessary ingredient of capacity assessments.[132]
Its recommendation was at odds with the Law Commission’s: the DoLS/LPS should be retained for mental health detention, but discretion to use either regime should be eliminated by specifying that only the DoLS/LPS could be used in non-objecting cases.[244]
Summary
The Mental Capacity (Amendment) Act 2019 was supposed to be a ‘really small, uncontroversial’ Bill,[1] one the whips could safely steer through a febrile parliamentary session engulfed by Brexit-related chaos. It is envisaged that the LPS will authorise an estimated 304,132 detentions annually in England and Wales.[5] To put this into perspective: in 2018-19 there were just under 50,000 new detentions to provide inpatient treatment for mental disorder under the MCA’s sister statute (the Mental Health Act 1983 MHA),[6] the prison population in England and Wales stood at just over 82,000,7 and over 26,000 people passed through immigration detention.[8] The new LPS will represent a high-water mark in the history of detention in the UK (Figure 1, below) These are not ‘paradigmatic’ cases of deprivation of liberty.[9] The affected population is predominantly older adults with dementia and people with intellectual disabilities, autism or brain injuries.[10] A minority, less than 2%, will be receiving inpatient treatment for mental disorder in psychiatric hospitals.[11] Some will be treated for physical conditions in general or acute hospitals. I outline the background to the DoLS and the LPS, before examining their provisions in greater detail and charting the key issues and debates that arose during the law reform process
Sign-in/Register to view highlights & summary Sign-in/Register to access full text options 
Free) 
Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a call
