The Department of Health and Social Care and Ministry of Justice has launched its 16-week consultation on a new draft Mental Capacity Code of Practice. The Code applies the practical detail that had been previously lacking on how the new Liberty Protection Safeguards (LPS) will work, as well as updating the existing Mental Capacity Act Code of Practice. The new Code will replace the existing separate Codes for the Mental Capacity Act 2005 and Deprivation of Liberty Safeguards (DoLS).
The Government is keen to canvass views on the draft Code of Practice and LPS Regulations – and welcome real life examples and practice, as much as possible to illustrate the Code.
The consultation does not confirm a date for implementation, but given there will need to be time to consider the consultation responses and then put the matter before Parliament, realistically it is now likely to be 2024 before the new Safeguards are actually in place.
LPS will apply to anyone over the age of 16 (the current DoLS regime only applies to 18+) and the Code sets out the detail of how the proposed Liberty Protection Safeguards will work.
The proposed Code deals with issues including the test for assessing mental capacity, best interests, Lasting Powers of Attorney and Deputies, advance decisions to refuse treatment and the protections that exist for people who lack capacity to make decisions for themselves.
To enable the new scheme to be successful, it needs agencies at all levels to input into the Code and Regulations now. Whilst the Government does not propose to implement all changes from the MC(Amendment) Act at this stage, this will be kept under review and further changes may well be introduced once the LPS process is embedded.
This is your opportunity to have a say and shape the MCA guidance going forward. It will also provide you with the opportunity to understand what is being proposed and start preparing, whether this is recruitment, training or re-organisation of processes; you have the opportunity to get ahead.
The consultation is open until 7 July and we would encourage anyone who might be affected by the proposed reforms to respond.