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Mental Capacity Act 2005

Volume 477: debated on Friday 13 June 2008

I have today laid before Parliament the Mental Capacity Act 2005 deprivation of liberty safeguards code of practice, along with the accompanying explanatory memorandum.

The deprivation of liberty safeguards were inserted into the Mental Capacity Act 2005 by the Mental Health Act 2007. They protect against the arbitrary detention of people who lack the capacity to consent to the arrangements made for their care or treatment and who need to be deprived of their liberty, in their own best interests and for their own safety, in either hospitals or care homes. They will rectify the breach of Article 5 of the ECHR identified by the ECHR in HL v UK 2004—the ‘Bournewood' case.

Section 42 of the Mental Capacity Act 2005 requires the Lord Chancellor to issue a code of practice to provide information and guidance on how the safeguards will work in practice. A draft version of the code was published for full public consultation in 2007. One hundred and ten individuals and organisations responded and many of the suggestions and comments received have been incorporated into the final version.

The Act requires a range of people to ‘have regard’ to the code, for example anyone acting in a professional or paid role in relation to someone who lacks capacity, but it particularly focuses on those who have a duty of care to a person who lacks the capacity to consent to the care or treatment that is being provided, where that care or treatment may include the need to deprive the person of their liberty.

The code is intended to provide valuable information and guidance to all those covered by the Act and has been written to meet the needs of this wide and varied audience.