Changes to the Mental Capacity Act code of practice – Law Society response
The Department of Health and Social Care (DHSC) and the Ministry of Justice (MoJ) have sought views on proposed changes to the Mental Capacity Act 2005 (MCA) code of practice.
These changes include guidance on implementing the new liberty protection safeguards (LPS) system which was introduced under the Mental Capacity (Amendment) Act 2019 and will replace the deprivation of liberty safeguards (DoLS).
The aim of LPS is to provide protection for people aged 16 and above who are, or who need to be:
- deprived of their liberty in order to enable their care or treatment, and
- lack the mental capacity to consent to their arrangements
We support the government’s commitment to addressing the current backlog in reviewing and authorising DoLS, which has led to people facing breaches of their human rights.
However, without substantial changes we believe the proposals to replace DoLS with LPS will result in weakened safeguards for vulnerable people.
In particular, the code must uphold the rule of law by ensuring the scenarios used to explain how a DoL is defined are legally correct.
If the government wishes to change the definition of how a DoL is defined, this should be attempted through legislation with an opportunity for robust scrutiny of the proposed changes.
The code must also recognise the impossibility of providing genuine advance consent to a DoL. It must also ensure access to justice by not limiting people’s rights to challenge care and treatment decisions.
What this means for solicitors
The government has confirmed that DoLS and LPS will run alongside each other for up to a year so that people subject to DoLS can be transferred over to LPS smoothly.
However, no new DoLS applications will be able to be made after the date that LPS is introduced.
The government’s consultation closed on 14 July 2022.
The government announced on 5 April 2023 that it would delay the implementation of the Mental Capacity (Amendment) Act 2019 until “beyond the life of this Parliament". The GOV.UK website has yet to be updated, but the Welsh government expressed their disappointment with the decision in a written statement.
We remain hopeful for ongoing engagement with the government on the issues we have highlighted in this response and to continuing to provide our expertise in this work.