Plans to reduce GP mental capacity assessment workload behind schedule, says minister
The primary care minister has admitted that plans to reduce GP involvement in mental capacity assessments are currently behind schedule.
Speaking today to the House of Commons Health and Social Care Committee, Stephen Kinnock said a consultation on overhauling the Deprivation of Liberty Safeguards (DoLS) will not begin in ‘the first half’ of 2026, which DHSC previously committed to.
The DoLS – an amendment to the Mental Capacity Act – are checks to protect hospital or care home patients suffering a mental health disorder who have had their freedom limited (‘deprived’) in some way.
Annual assessments as to whether the restrictions remain appropriate include a visit by a ‘mental health assessor’, a role typically filled by a GP.
Last year, the Government proposed replacing DoLS with Liberty Protection Safeguards to address the ‘shameful backlog’ of mental capacity assessments that this ruling had created. Liberty Protection Safeguards would allow for existing assessments to be reused or for assessments to last for longer than one year.
A Supreme Court judgement earlier this month overturned a previous ruling which had significantly lowered the threshold required to perform a DoLS assessment and had created a backlog of 125,000 assessments.
MP Alex McIntyre asked Mr Kinnock: ‘Previously, the Department [of Health and Social Care] said that there would be a consultation on the Liberty Protection Safeguards in the first half of 2026. Given we have six days left of the first half of 2026, are we still expecting that in the next week?’
Mr Kinnock said the Department of Health and Social Care ‘haven’t done’ the work on the consultation.
He said: ‘One of the reasons that we haven’t done the deprivation of liberty work that you just mentioned is because once that challenge came in on Cheshire West [original Supreme Court ruling], it didn’t really make sense to launch anything until we had clarity on that piece – we do now have that clarity.
‘We, of course, respect the Supreme Court’s judgment, our job now is to put that into practice.’
Mr Kinnock added that there was ‘no reason at all’ why ‘people in the relevant authorities’ could not start adapting their systems to the ruling in the interim. He said the Government had issued new guidance explaining the implications of the new ruling.
A 2014 Supreme Court ruling (‘Cheshire West’) significantly lowered the ‘deprivation of liberties’ threshold and led to a 22-fold increase in referrals while creating a backlog of 125,000 assessments, according to DHSC.
On 2 June this year, the Supreme Court said the 2014 ruling was incorrect, arguing that the fact a person lacks legal capacity to consent for their care does not mean they cannot give valid consent to be deprived of liberty.
The BMA has previously said secondary care trusts cannot ‘compel’ GPs to carry out mental capacity reports on their behalf without paying them an ‘agreeable’ rate.
In the same committee meeting, Mr Kinnock also said the shift to neighbourhood health would move away excessive ‘dominance’ by acute trusts in the ‘culture’ of the NHS.
He said: ‘The old saying is culture eats structure for breakfast, so you can do as much restructuring as you like, but fundamentally we have to change the culture, and the culture is that there’s too much dominance by acute trusts.
‘We’ve got to do the left shift, that means giving local authorities a really strong voice on adult social care, means giving GPs a strong voice on primary care.’
Guidance on plans for neighbourhoods has revealed trusts will be eligible to gain commissioning responsibilities for primary care.
High-performing trusts can apply for ‘advanced foundation trust’ status. Advanced foundation trusts can then apply to hold integrated health organisation (IHO) contracts, which hold the whole health budget ‘for a defined population’.
The BMA has warned that trusts are ‘likely’ to run general practice under neighbourhood plans and it urged GPs to request meetings with local trusts and ICBs to seek details of their plans for IHOs.
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