New Mental Capacity Act Code of Practice consultation launched

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, the Department of Health says.

The Department of Health and Social Care and Ministry of Justice have launched a consultation 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.

The Liberty Protection Safeguards (LPS) were introduced in the Mental Capacity (Amendment) Act of 2019, with the Government committing to bringing LPS into force to replace the Deprivation of Liberty Safeguards (DoLS). However, in December 2021, it announced a delay to the implementation of LPS.

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.

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

Minister for Care and Mental Health Gillian Keegan said the new Liberty Protection Safeguards will put people at the heart of care and give them more of a say.

“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.

“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.”

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.