Related Sector: Health & Social Care

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Following last month’s publication of the final Mental Capacity and Deprivation of Liberty report from the Law Commission, many local authorities, health organisations and BIAs are wondering if the current system will change, and if so, when?                   

There are a number of possibilities. Please find below a brief summary of the current situation and what we believe might happen:

Where are we?

Currently the report and draft Bill are with the Department of Health, and within the next 12 months we expect their analysis and response.  Essentially the Government will be deciding whether to accept, reject or modify the Law Commission’s recommendations.

As this is a complex report, we would expect the Government response to be considered and detailed.

What could happen?

If the Government rejects the Law Commission’s report, the current MCA and DoLS procedure will remain as they are. As the report was commissioned by Government we think that a wholesale rejection is unlikely.

If the recommendations are accepted (either practically, wholly, or in a modified form), a Bill will be handed to Parliament. Changing primary legislation is a complex matter and will not occur overnight.

The Bill will then be subject to the legislative process and will be scrutinised by Parliament and go through the usual ping-pong between the Commons and the Lords. After this process, if Parliament agree on the Bill, it will gain royal assent and then become law.

A transitional period will be required to allow time for the necessary structures to be put in place and for the framework of the new system to be created. This will include new supporting guidance, codes of practice, and of course any new job roles.

What does this mean?

The short answer is that things may change, but it seems not anytime soon. As it stands, and unless the law is changed, the current DoLS regime remains in place and must be abided by.

Zak McNally
Health and Social Care Manager

This article was first published on Wednesday 12nd April 2017.


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