Mental Capacity (Amendment) Act 2019 DHSC impact assessment

On 28 January 2021, the Department of Health and Social Care published the Impact Assessment of the Mental Capacity (Amendment) Act 2019.

The Mental Capacity (Amendment) Act 2019 (MCAA2019) introduces Liberty Protection Safeguards (LPS), which will replace the current Deprivation of Liberty Safeguards (DoLS) scheme.

The assessment considers the impact of three policy options;

1. DoLS and CoP authorisations at present – which was found to be “not fit for purpose” by the House of Lords Select Committee in 2014
2. Existing mechanisms fully operationalised – to ensure that the actual number of DoLS applications and Court of Protection (CoP) applications are dealt with appropriately
3. Liberty Protection Safeguards

LPS is the DHSC’s preferred option “because it is proportionate, cost-effective and resolves the problems identified in the existing DoLS system in a timely way.”

The below table is a summary of the costs involved with each of the options:

As anticipated, there will be additional costs incurred by the transition from DoLS to LPS. All of the transitional costs are a result of training for everyone involved in administering the LPS scheme, including doctors, social workers and advocates. This training is estimated to cost £38m. Care home managers will need specific training for their roles, which is estimated to cost £2m.

The annual costs of LPS will be incurred in similar ways as under the current DoLS scheme.

After the initial transitional costs, the LPS scheme is considerably cheaper than either continuing to work with the current DoLS scheme or for it to be made fully operational.

The benefits of LPS stretch further than costs savings. The other benefits include, but are not limited to;

• Providing an authorisation process and review scheme that is Article 5 compliant – ensuring everyone’s right to liberty and security is protected
• Ensuring that people are only deprived of their liberty if this is necessary and proportionate, with a greater focus on the person's wishes and feelings
• A more streamlined and less complex system, enabling authorisations to be processed more efficiently, which means vulnerable people will be able to access safeguards more quickly and human rights outcomes will be improved.

The assessment is however based on the current design plans for the LPS scheme and it is therefore an incomplete and non-final assessment of the impact of LPS overall. The assessment does not take account of the government’s decision to abandon the new role for care home managers and therefore the costs are expected to change during implementation planning.

For more information

For further information in relation to any of the above, please contact your relevant ACS contact or Rebekah Sambrooks.