People who may lack capacity must be protected as key guidance changed

It is vitally important that people who may not have capacity to make decisions about their care do not lose essential protections, the Law Society of England and Wales said in its response to the UK government’s consultation on proposed changes to the Mental Capacity Act 2005 (MCA) Code of Practice.

Law Society president I. Stephanie Boyce said: “We are pleased the UK government is updating the out-of-date code of practice to match new legislation affecting some of the most vulnerable in our society.

“This could affect someone with Alzheimer’s who cannot approve their medication, for example, or someone who needs to be restrained for their own personal safety.”

The MCA protects the rights of people who lack the mental capacity to make decisions about their care and treatment.

Its new code of practice will provide guidance for those who work with or care for people who may lack capacity,* including attorneys appointed under a lasting power of attorney (LPA). It will also feature guidance on new safeguards.**

“Our overriding concern is ensuring that new safeguards do not weaken protections for people who may not have the capacity to consent to care and treatment,” said I. Stephanie Boyce.

“We are particularly concerned that the draft code of practice does not correctly identify when a person is at risk of being deprived of their liberty.

“This creates the risk that people who are deprived of their liberty will not have the opportunity to challenge the lawfulness of their situation.

“Additionally, if a deprivation of liberty is not recognised as such, necessary safeguards may be bypassed. This could mean, for instance, that someone may be prevented from ever leaving their home even if no assessment took place to prove this is necessary.

“We urge the government to talk to us and other experts in this field to keep people who may lack capacity at the centre of any guidance.”

Notes to editors

* Applies to people aged 16 and over.

** Liberty protection safeguards (LPS) – which will replace deprivation of liberty safeguards (DoLS). These were introduced under the Mental Capacity (Amendment) Act 2019.

LPS are mechanisms that aim to provide protection for people over 16 who need to be deprived of their liberty to enable their care or treatment, but lack the mental capacity to consent to this. Read more about the LPS

Find out about the Mental Capacity (Amendment) Act 2019, which introduced LPS. The act applies in England and Wales though some parts are specific to England only.

The government consultation closes on 14 July. Read our full consultation response.

The legal definition of deprivation of liberty is that someone is:

  • subject to continuous supervision and control
  • not free to leave

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