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Government consults on revised MCA Code of Practice and guidance on Liberty Protection Safeguards

The Government has launched a consultation on proposed changes to the Mental Capacity Act 2005 (MCA) Code of Practice, which includes guidance on the new Liberty Protection Safeguards (LPS) system.

The consultation, which closes on 7 July 2022, is also seeking views on the LPS regulations, which will underpin the new system.

This is the first revision of the code since its publication in 2007 “and reflects changes in legislation, case law, organisations and good practice which have developed over time”, the Department of Health and Social Care and the Ministry of Justice said

They added: “People who have their freedoms restricted to help them receive the best care and treatment will be put at the centre of a new system designed to better protect their human rights.”

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The DHSC and the MoJ said the MCA Code of Practice needed updating “to better support those with dementia, acquired brain injuries, learning disabilities and autism who may need assistance with their everyday decision-making but lack mental capacity thereby requiring others to make decisions in their best interests”.

These decisions could include where a person should live, whether assistive technology like sensors or keypad entry should be installed, setting times for refreshments or activities, whether they can leave the accommodation or restraint in certain circumstances among others.

The DHSC and the MoJ highlighted how the new Liberty Protection Safeguards being consulted on would:

  • Introduce an explicit duty to consult with the person and those interested in their welfare to find out the individual’s wishes and feelings about proposed arrangements
  • Allow people to have representation including independent mental capacity advocates to ensure their rights are protected and assess what safeguards are necessary when decisions are being made
  • Extend safeguards to 16 and 17-year-olds and people in any care setting
  • Improve the protection of rights for people at the heart of the most complex cases through new mental capacity professional roles
  • Better integrate decisions on Liberty Protection Safeguards as part of health and social care assessments
  • Involve clinical commissioning groups and NHS trusts in the process to reduce backlogs
  • Reduce the number of assessments required to make decisions to help ensure more timely assessments

Minister for Care and Mental Health Gillian Keegan said: “Some of the most vulnerable people in society are lawfully deprived of their liberty to ensure they receive the best possible care, as safely as possible, while they are in hospital or living in a care home. Liberty Protection Safeguards put people at the heart of care, just as we promised in our reform programme and will give them more of a say in their care.

“The proposed changes will speed up processes and increase fairness, ensuring the balance between a person’s human rights and freedoms and their need to receive the right care in the right place at the right time.”

Justice Minister Tom Pursglove MP said: “The Mental Capacity Act protects vulnerable people unable to make decisions in their own interests and updating the Code Of Practice will mean those caring for them provide more consistent and better quality support.”

The new system will, when implemented, replace Deprivation of Liberty Safeguards, which have been in place since 2009.

The MCA applies in England and Wales, but some aspects of its application are devolved in Wales. The Welsh Government has therefore informed this consultation, the UK Government said.

The Government has published a number of documents designed to help the sector prepare for implementation. These products are not subject to formal consultation, but the Government said it welcomed feedback as part of the consultation process. These are:

  • impact assessment;
  • LPS workforce and training strategy;
  • LPS training framework;
  • LPS National Minimum Data Set; and
  • equalities impact assessment.

The Welsh Government is holding a separate consultation on certain aspects of the LPS design in Wales.

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