Update on the Liberty Protection Safeguards scheme

In a Department of Health and Social Care (DHSC) newsletter published yesterday (20 June 2023), the Deprivation of Liberty Safeguards (DoLS) and mental capacity team have confirmed that they “remain committed” to publishing a response to the consultation “later this year”. This follows the announcement made in April to delay the implementation of the Liberty Protection Safeguards “beyond the life of this Parliament”.

In the DHSC’s update, they set out where they have got to with the work to review the Mental Capacity Act 2005 Code of Practice (MCA Code) jointly with the Ministry of Justice (MoJ). They say that both MoJ and DHSC remain committed to updating the MCA Code, to ensure that changes in case law and good practice since its publication in 2007 are incorporated, and to reflect the feedback stakeholders have provided both before and during consultation.    

They go on to explain that work to revise the MCA Code will consider references on DoLS where appropriate, with the “aim of ensuring all those who work with the Act and those who are affected by it have up-to-date statutory guidance. We will continue to work closely with stakeholders and further details on this work will be shared with you in due course.”

In this interim period, DoLS remains the system for authorising deprivations of liberty. It is important that care homes, Integrated Care Boards and health and care providers continue to make applications in line with the Mental Capacity Act 2005 to ensure that the rights of the vulnerable who lack capacity are protected.

And while we wait for the revised Code, Alex Ruck Keene KC (Hon) and the team at 39 Essex Chambers have put together an unofficial update which would be worth reading.

Do get in touch if you’d like to discuss the delay and what this means for your organisation – we’ve an expert and friendly team ready to support you.

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