Mental Capacity (Amendment) Act 2019

Policy background

3. In 2014 the Government asked the Law Commission to review the Deprivation of Liberty Safeguards scheme ("DoLS") (contained in Schedules A1 and 1A to the MCA). The DoLS provide a process for authorising adults who lack capacity to consent to being accommodated in a hospital or care home for the purpose of care or treatment to be deprived of liberty if it is in their best interests and necessary to prevent harm to the person and a proportionate response to that harm.
4. The DoLS scheme was introduced in 2009 following the decision of the European Court of Human Rights in HL v United Kingdom.1 This judgment identified a gap in the law, known as the "Bournewood gap".2 The European Court held that individuals who lacked capacity and were being deprived of liberty for the purpose of treatment under the common law, rather than under the Mental Health Act 1983, were being denied the procedural safeguards required by Article 5 of the European Convention on Human Rights. Article 5 provides that no one shall be deprived of liberty except in specific cases (one of which is the lawful detention of persons of "unsound mind") and "in accordance with a procedure prescribed by law".
5. However, the DoLS have been subject to criticism since their inception. The House of Lords Select Committee on the MCA found in its 2014 post-legislative scrutiny report that the DoLS were "frequently not used when they should be, leaving individuals without the safeguards Parliament intended" and care providers "vulnerable to legal challenge". The Committee concluded that "the legislation is not fit for purpose" and recommended its replacement.
6. In 2014 the decision of the Supreme Court in the case of Cheshire West3 gave a significantly wider interpretation of deprivation of liberty than had been previously applied in the health and social care context. This increased considerably the number of people treated as being deprived of liberty, and correspondingly increased the obligations on public authorities (primarily local authorities) in connection with authorising, and providing safeguards for, these extra deprivations of liberty.
7. Following Cheshire West, the Government asked the Law Commission to review this area of law. The Commission’s final report, which included a draft Bill, called for the DoLS to be replaced as a matter of "pressing urgency" and set out a replacement scheme. The new scheme was intended to establish a proportionate and less bureaucratic means of authorising deprivation of liberty (see footnote 1).
8. The Government’s final response to that report was published on 14 March 2018.4 The Government accepted that the current DoLS system should be replaced, and broadly agreed with the model set out in the Commission’s draft Bill. This Act is based on the Law Commission’s recommendations.