Written Statement: Update on the implementation of the Liberty Protection Safeguards

The UK Government has announced their intention to step away from the introduction of the Liberty Protection Safeguards (the LPS) and the implementation of the Mental Capacity (Amendment) Act 2019 (the 2019 Act). UK Government has confirmed that the necessary legislation to implement the LPS will not be brought forward within this Parliament. Welsh Government is deeply disappointed with this decision not to proceed with implementation at this time. The right to liberty is one of our most fundamental human rights. 

The Deprivation of Liberty Safeguards (DoLS) is the existing scheme for the assessment and authorisation of deprivations of liberty and was introduced to protect the human rights of those individuals who lack the mental capacity to consent to being deprived of their liberty. Following the Supreme Court judgment in the case of Cheshire West, the UK Government introduced the 2019 Act, with the view to repealing DoLS and replacing it with the LPS. Unlike DoLS (which only applies to arrangements in care homes and hospitals and to people aged 18 and above), the LPS would apply in all settings and also to anyone aged 16 and over.

Although implementation of the 2019 Act is a reserved area, Welsh Ministers would have regulation making powers in certain areas upon commencement of the Act. Welsh Government has been fully supportive of the reforms that the LPS would have introduced. Since the Act received Royal Assent in 2019, we have been preparing regulations for Wales and working with UK Government officials to ensure the Code of Practice reflects the policy position for Wales. 

Welsh Government recently consulted on draft regulations for Wales, together with our proposals for supporting the workforce to prepare for implementation. Welsh Government also consulted on the roles of CIW and HIW to monitor and report on the new arrangements, supported for the first time by Estyn to reflect the wider scope of the LPS to 16 and 17 year olds. 

We all share the goal to continue to integrate and embed the principles of the Mental Capacity Act 2005 and the 2019 Act into everyday care, support or treatment arrangements to avoid unnecessary duplication and bureaucracy for individuals and their families, and equally for practitioners, enabling them to share and use information legally and appropriately. 

Despite the recent decision of the UK Government, this remains our goal and our ambition for the people of Wales.  The views and the work of everyone who helped us develop and shape the consultation products, as well as everyone who offered views on the consultation, are not wasted.  They have been recorded and retained to support us to protect and enhance people’s rights under the 2019 Act.

It has been widely recognised that there are number of challenges associated with the current DoLS system, particularly in light of the increases in the number of DoLS applications – which have been seen across England and Wales. 

In light of the UK Government decision, we will need to consider how we strengthen the current DoLS system in Wales and continue to protect and promote the human rights of those people who lack mental capacity.  Stakeholders in Wales have provided significant evidence and support to help us shape the LPS for Wales.  It is right that we re-engage with these stakeholders following this most recent decision by the UK Government so that we can listen and hear what we can do now to address some of the current challenges within DoLS. This will support the current application of DoLS, and strengthen the position that Wales will be in to transition to the LPS in the future.

Welsh Government made £8m funding available in 2022/23 to support preparations for the LPS. As the regulations and Code of Practice had not yet been finalised, a significant amount of that funding has been utilised to deliver Mental Capacity Act training and to manage the current DoLS system, to ensure that Wales is in a stronger position to transition to the LPS. Despite the decision by UK Government not to implement the LPS within this Parliament, this funding continues to be vital to protect the rights of those who lack mental capacity under the current DoLS system. Welsh Government will therefore continue to provide funding at a comparable level to 22/23 levels, to ensure that that these rights are protected ahead of any future implementation of the LPS.

Whilst Welsh Government is deeply disappointed with the UK Government decision not to implement the LPS within this Parliament, it is imperative that the momentum generated through the contributions of stakeholders in Wales is not lost. Welsh Government will continue to work with stakeholders to improve services for those who lack mental capacity, whilst preparing for any future decision by UK Government to implement the necessary reforms identified in the Mental Capacity (Amendment) Act 2019.

This statement is being issued during recess in order to keep members informed. Should members wish me to make a further statement or to answer questions on this when the Senedd returns I would be happy to do so.