Final report from the Law Commission’s review of the Mental Capacity and Deprivation of Liberty Safeguards (DoLS), which considered how the law should protect people who need to be deprived of their liberty in order to receive care or treatment and lack the capacity to consent. The review found that DoLS were overly technical and legalistic, often failed to achieve any positive outcomes for the person concerned or their family, and could not deal with the increased numbers of people considered to be deprived of their liberty following the Cheshire West ruling. The report provides recommendations for the reform of the legal framework and proposes that the DoLS should be replaced by a new scheme, the Liberty Protection Safeguards. The proposed scheme would cover a broader group of people, including any setting that might give rise to a deprivation of liberty and would also cover 16 and 17-year-olds. A draft Bill attached to the report provides details of the new scheme. The draft Bill also includes amendments to other parts of the Mental Capacity Act to provide increased protection for people whose rights to respect for their private and family life and their home, whether or not they risk being deprived of their liberty. The Law Commission also recommended that the Liberty Protection Safeguards should be accompanied by the publication of a new Code of Practice covering all aspects of the Mental Capacity Act. An impact assessment and a summary of the report are published alongside the final report.

This blog contains information on coronavirus and the Mental Capacity Act 2005 amongst other topics including a a dedicated space for resources on MCA.

This book is designed to help conduct robust assessments whilst at the same time enabling professionals to provide optimum outcome for those under their charge. It also aims help achieve these goals: set the threshold of understanding which is necessary for every assessment; clearly define seemingly ambiguous phrases such as ‘unwise decisions’ and ‘the functional test’; recording assessments ensuring they stand up to legal scrutiny.

This guidance note sits alongside our guidance note on carrying out and recording capacity assessments, and is designed to assist social workers and those working in frontline clinical settings when they asked to consider a person’s capacity to make a decision or decisions. As set out in our guidance note, the courts have now applied the MCA 2005 in respect of very many types of decision. In the course of doing so, they have given indications as to what they consider to be relevant (and sometimes irrelevant) information for purposes of those decisions – i.e. what the person must be able to understand, retain, use and weigh to able to make the decision. This guidance note pulls together the guidance given in relation to some of the most common decisions that are encountered in practice in the context of health and welfare matters.

A general discussion examining to the legal position in relation to testing for COVID-19, especially as testing (a) starts to be more generally available; and (b) is increasingly been rolled out as mandatory in certain settings. It primarily relates to the position in England in relation to those aged 18 and above; specific advice should be sought in respect of Wales and those under 18.

This note provides an overview of the Department of Health and Social Care (non-statutory) guidance ‘Adult social care: our COVID-19 winter plan 2020 to 2021’. It discusses the key issues for local authorities, and in particular the interplay with the wellbeing principles of the Care Act 2014, including managing a potential conflict in terms of the wellbeing of both care home residents and those in the community with care and support needs as regards prevention of C-19. It also looks at the implications of the winter plan for the right to respect for family and private life, addressing the tension between the imperative to protect the health of social care users (and the social care workforce) and the need to respect the family life and private life rights of those who might be subject to protective restrictions. Finally, it explores the impact of the winter plan on deprivation of liberty safeguards, in particular in relation to testing and 14-day isolation requirements.

Interim statement providing an update on issues that emerged from the Law Commission’s consultation on the Deprivation of Liberty Safeguards (DoLS), which set out a replacement scheme called ‘protective care’. The paper sets out the background to the review of DoLS. It then outlines the ‘protective care’ scheme described in the consultation paper, which consists of three aspects: the supportive care scheme, the restrictive care and treatment scheme, and the hospitals and palliative care scheme. It then summarises the main messages from the consultation, which received 583 written responses and involved the Law Commission attending 83 events across England and Wales. The results of the consultation found a case for replacing the DoLS. Most consultees found the DoLS to be overly legalistic and found it had failed to deliver improved outcomes for people who lack capacity and their carers. Most consultees welcomed the new provision proposals, but concerns were raised about the financial implications. During the next phase of the review, the Law Commission will produce draft legislation and a final report. The document invites views on the new name for the scheme.

A free tool to support people to draft an advance decision or advance statement online.

This leaflet clarifies how people can plan ways, with their families, to ensure their wishes are taken into account if through illness they cannot take decisions for themselves.

Outlines the key parts and processes of liberty protection safeguards.

An overview, signposting to relevant resources and guidance, on how an attorney or deputy can continue to fulfil their role during the Covid-19 pandemic and lockdown.

Sets out in detail the Government’s provisional view of each individual proposal, broadly agreeing with the Liberty Protection Safeguards model. As the Government has commissioned a review into the Mental Health Act, proposals that relate to the interface between the Mental Health Act and Mental Capacity Act will be considered as part of that review. The Government also wants to ensure that Liberty Protection Safeguards fit with the conditions and future direction of the health and social care sector, so it will continue to work through the detail of the recommendations and engage further with stakeholders particularly on implementation. The Government will bring forward legislation to implement the model in due course.