Mental Capacity (Amendment) Bill

Thank you for contacting me regarding the Mental Capacity (Amendment) Bill, which will introduce legislation to replace the current system known as ‘Deprivation of Liberty Safeguards’ (DoLS). The Bill builds on the independent Law Commission’s three year engagement with vulnerable people, carers, local government and providers as part of its work to look at how best to make much-needed improvements to the current arrangements.

As you will be aware, DoLS is an assessment currently carried out on people who lack the mental capacity to make their own decisions about their care, for example because they are living with dementia. However, the current system is broken and is ultimately failing to provide vulnerable people with the protections they need. More than 48,000 people have been waiting more than a year for an assessment, and I agree with my ministerial colleagues that we urgently need to act to tackle this injustice.

That is why the Government has brought forward a new system, known as ‘Liberty Protection Safeguards’. These reforms will introduce a simpler, streamlined process that is essential to tackling the backlog of vulnerable people waiting for an assessment, but, crucially, robustly upholds the rights of the individual at all stages. Giving more power to the individual, the new Safeguards ensure their thoughts and feelings are taken into account throughout.

The proposed system will be person-centric and include a strong role for carers and families, including an explicit duty to consult with them as well as the individual receiving care on proposed care arrangements. This is a system that will be easier for people, care providers and local authorities as assessments can take place as part of the wider care-planning process and make sure that we are not just ‘rubber stamping’ deprivations already in place.

The cared-for person must have an ‘appropriate person’, or an Independent Mental Capacity Advocate to support them (if it is in their best interests). Where there are objections, raised by any relevant person, an independent Approved Mental Capacity Professional reviews the arrangements.

I know there has been some concern over the role of care home managers in this system. Care home managers, as in the current system, will continue to play a role in identifying a need for safeguards, as well as playing a role in flagging when someone has objections to their arrangements. The Minister for Care has made clear that care home managers will never be responsible for authorising arrangements or conducting reviews. This will rightly be the sole duty of responsible bodies such as local authorities or hospitals.

For people with long-term progressive conditions, starting the process from scratch every year can be cumbersome and unnecessary. The Liberty Protection Safeguards model therefore triples the maximum authorisation length from one year to three years, as recommended by the Law Commission. This will only be granted to people who have already received two prior assessments and authorisations, and whose circumstances are unlikely to change. Every authorisation will also be supported by a programme of reviews which can take place regularly within an authorisation period to ensure that the care arrangements in place remain appropriate for the individual.

I hope this reassures you that the Government is committed to tackling this broken system while ensuring the rights of those affected are robustly protected throughout.