The government suffered its first defeat on its bill to replace the Deprivation of Liberty Safeguards (DoLS) as peers voted to amend one of the three conditions for authorising a deprivation under the proposed Liberty Protection Safeguards (LPS) system.
Labour, Liberal Democrat and crossbench peers outvoted the government on one of a number of amendments to the Mental Capacity (Amendment) Bill passed in the first day of the bill’s report stage in the House of Lords.
The bill originally stated that for care arrangements involving a deprivation of liberty to be authorised, the cared-for person must lack capacity to consent to the arrangements and be of unsound mind; and the arrangements must be necessary and proportionate.
The amendment, opposed by the government, altered the last criterion to state that it must be necessary “to prevent harm to the cared-for person”. An accompanying amendment that the authorisation be proportionate “in relation to the likelihood and seriousness of harm to the cared-for person” was then nodded through.
The revised wording restates part of the best interests requirement of an authorisation under the current DoLS system.
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Junior health minister Lord O’Shaughnessy warned that the amendments risked emphasising harm to the cared-for person at the expense of other factors in the necessary and proportionate assessment, notably harm to others, preventing assessors from making balanced decisions. He said they risked perpetuating the “current confusion” in relation to DoLS cases that involved some harm to others, and risked an increase in usage of the Mental Health Act if the LPS were seen as being ruled out in such cases.
He said the government’s view was that the code of practice under the act – which local authorities, the NHS and other relevant bodies will have to take account of – should set out what factors to consider in a necessary and proportionate assessment.
‘Weakening of protections’
However, speaking for the amendments, Lib Dem Baroness Barker said the original necessary and proportionate requirement seemed to “be a weakening of the protections for an individual”, compared with DoLS, because it was not related directly to the cared-for person’s best interests.
She also stated that it should be harm to the person, rather than harm to others, that should be the focus of decision-making under LPS.
Barker also said that it was vital that this was written into the text of the bill, as opposed to the code of practice, so that it was legally enforceable.
“When there are arguments about whether a deprivation of liberty is lawful, those arguing the case, particularly judges, do not go to the code of practice but to the statute,” she added.