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21st March 2022

Consultation launched to improve protections for people deprived of their liberty

The government has opened a public consultation on proposed changes to the Mental Capacity Act Code of Practice, which includes guidance on the new Liberty Protection Safeguards system.

It will run for 16 weeks from 17 March 2022.

The consultation launched by the Department of Health and Social Care and Ministry of Justice aims to update the Mental Capacity Act Code of Practice 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 Mental Capacity Act Code of Practice sets out how carers and practitioners can make these decisions for others on a day-to-day basis while ensuring the individual is both protected and empowered.

This is part of the government’s promise to ensure everyone receives the right care in the right place at the right time, as part of its reforms of the health and social care system. The new Liberty Protection Safeguards being consulted on will:

  • 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

LPS implementation products

The Government is also asking for feedback on several documents to help the sector prepare for LPS. This is not part of the formal consultation process, but includes an:

  • Impact assessment – this constitutes the government’s assessment of the financial impact of LPS, including the Code and regulations, as proposed for consultation
  • LPS workforce and training strategy – this covers workforce planning, the learning, development and training on offer and what different organisations and sectors can do now to begin preparing for LPS

The new system will replace Deprivation of Liberty Safeguards, which have been in place since 2009, with the consultation starting this month and ending on 7 July 2022.

The MCA applies in England and Wales, but some aspects of its application are devolved in Wales.

Further Information

Open Consultation: Changes to the MCA Code of Practice and implementation of the LPS https://www.gov.uk/government/consultations/changes-to-the-mca-code-of-practice-and-implementation-of-the-lps

*All information is correct at the time of publishing. Use of this material is subject to your acceptance of our terms and conditions.

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