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The intention of the Mental Capacity (Amendment) Bill is to reform the process for authorising arrangements which enable those who lack the capacity to consent to be deprived of their liberty for the purposes of providing them with care or treatment. The new regime created by the Bill would replace the existing authorisation process, known as the Deprivation of Liberty Safeguards (DoLS), which is provided for by the Mental Capacity Act 2005. Those arrangements have attracted significant criticism, including from the House of Lords Mental Capacity Act 2005 Committee in 2014, and at the same time key court judgments have widened the interpretation of those who should be recognised as having been deprived of their liberty, with significant implications for the public sector bodies charged with administering the DoLS scheme.

Consequently, the Government tasked the Law Commission with reviewing current deprivation of liberty arrangements. In their final 2017 report, the Law Commission found that there was a compelling case for replacing the DoLS scheme, which it concluded was overly technical, often failed to achieve any positive outcomes for the person concerned or their family, and was not capable of dealing with an increased number of cases following the recent legal judgments referred to above. Most significantly, however, the Law Commission concluded that the DoLS scheme failed to offer sufficient protections, describing a system where the rights of those deprived of liberty had too often been theoretical and illusory.

As a result, the Law Commission recommended that the DoLS scheme be replaced with a new regime which it termed the Liberty Protection Safeguards. The Law Commission model seeks to make use of existing mechanisms where possible, but to remove the features of DoLS they identified as being both inherently inefficient and actively detrimental to the interests of people deprived their liberty. The Government accepted the majority of the Law Commission’s recommendations and the Mental Capacity (Amendment) Bill is intended to implement those reforms (with some exceptions). The Bill would apply to England and Wales only.

This briefing briefly outlines the provisions in the Mental Capacity Act 2005 and the DoLS scheme, before examining the Law Commission’s recommendations and setting out the provisions in the Mental Capacity (Amendment) Bill and any areas where they differ from the Law Commission’s recommendations. This paper also includes the findings of the Joint Committee on Human Rights’ examination of the DoLS scheme.

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