A report outlining the legislative changes which are due to be implemented in relation to people who lack capacity to consent to their care needs being met.

The Executive Director of Social Care and Health submitted a report on legislative changes which were due to be implemented in relation to people who lacked capacity to consent to their care needs being met.

The current arrangements under the Deprivation of Liberty Safeguards (Mental Capacity Act 2005) were due to be replaced by new legislation in the form of Liberty Protection Safeguards (LPS) which had been introduced by the Mental Capacity (Amendment) Act 2019. The implementation date had yet to be confirmed but the Code of Practice and Regulations had been laid before Parliament and were currently subject to consultation. 

The report explained the current process, which provided safeguards so that deprivation of liberty was made lawfully through ‘standard’ and ‘urgent’ authorisation processes, designed to prevent arbitrary decisions to deprive a person of their liberty and a right to challenge authorisation decisions.  A managing authority (a hospital or care home) had to seek authorisation from a supervisory body (local authority) in order to be able to lawfully deprive someone of their liberty. Before giving such an authorisation, the supervisory body had to be satisfied that the person had a mental disorder and lacked capacity to decide about their care and treatment. 

The report explained that a 2014 Supreme Court judgement (the ‘Cheshire West’ judgement) had set a new ‘acid test’ which had led to many more people being found to be deprived of their liberty within the new definition, and this had had a significant impact on resources across the sector, particularly for local authorities in their role as Supervisory Body.

The report explained that the intention of LPS was to provide a simplified process which was based more around usual care and support planning processes and only involved specialist assessment in particular circumstances.  It summarised the key changes and set out the planning which had been carried out in preparation for the changes.

Resolved –

(1)          That the proposed legislative changes be noted;

(2)      That the planning and preparation under way to ensure compliance with the new framework be endorsed.