Safeguarding Liberty in Wales?

18th April 2023

Earlier this month, the UK Government announced it would be delaying the long-awaited implementation of the Liberty Protection Safeguards (LPS) set out in the Mental Capacity (Amendment) Act 2019 (the Act).

Our recent article explaining the announcement and its consequences can be found here. In its response here, the Welsh Government (WG) has indicated deep disappointment “with this decision not to proceed with implementation at this time. The right to liberty is one of our most fundamental human rights.”

The Government of Wales Act 2006 (GoWA), as amended by the Wales Act 2017, moved Wales to a reserved powers model, enabling Senedd Cymru to legislate on any subject except those specifically reserved to the UK Parliament. The Mental Capacity Act 2005 is predominantly reserved to the UK Government and implementation of the Act is a reserved area.

However, Welsh Ministers would have regulation making powers in certain areas upon commencement of the Act. Welsh Government has been supportive of the reforms that the LPS would have introduced “as part of a structured and timely approach to implementation, underpinned by a comprehensive workforce planning and training framework”. Since the Act received Royal Assent in 2019, WG had prepared and consulted on Wales – specific Regulations to accompany the LPS aligning these with Welsh rights-based legislation, to ensure that the person was placed at the heart of the decision-making process and working with UK Government officials to ensure the Code of Practice reflects the policy position for Wales.

Wales, as in England, has seen an increase in the number of applications for Deprivation of Liberty Safeguards (DOLS) authorisations over recent years and both the UK Government and WG have recognised that the DOLS regime is not fit for purpose. For the future, WG has pledged to discuss with stakeholders to understand how the current DOLS system can be improved. The British Association of Social Workers (BASW) are calling for the UK Government to follow suit and engage with the sector to improve the current DOLS scheme. Despite the mothballing of the LPS, the WG will continue to provide funding with a view to securing an improved experience of those involved in the DOLS regime. BASW are urging the UK Government to invest the funding intended for the LPS to strengthen the current DOLS system.

For further information about the Act, LPS and all aspects of mental capacity law, as well as Court of Protection proceedings contact Eve Piffaretti or Spencer Gardner.

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