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Liberty Protection Safeguards and Mental Capacity Act Code of Practice

Volume 710: debated on Thursday 17 March 2022

This is a joint statement with the Parliamentary Under-Secretary of State for of Justice.

Today, the Department of Health and Social Care, and the Ministry of Justice have launched a joint public consultation on an updated statutory code of practice for the Mental Capacity Act and on proposals for the implementation of liberty protection safeguards. The Mental Capacity Act 2005 provides an empowering legal framework for people who cannot make certain, specific decisions about their own lives. This includes some people with dementia, learning disabilities and autism.

The liberty protection safeguards were introduced in the Mental Capacity (Amendment) Act 2019. They will protect people aged 16 and above who are, or who need to be, deprived of their liberty to enable their care or treatment and who lack the mental capacity to consent to these arrangements. When a person needs to be deprived of their liberty, this must be done with the greatest of care and respect for that person and their rights. It is the Government’s intention that the liberty protection safeguards will replace the deprivation of liberty safeguards and will provide specific protections when people are deprived of liberty in any setting, in England and Wales.

In 2019, MoJ also announced a review of the Mental Capacity Act code to reflect changes in law and practice since its publication in 2007. We undertook a call for evidence to help us decide which aspects of the code needed updating or improving. Acting on feedback from stakeholders, we have decided to merge the Mental Capacity Act code with guidance on the liberty protection safeguards. Liberty protection safeguards implementation and practice will therefore be fully informed by the important principles of the Mental Capacity Act.

The elements of the new code that do not directly concern the liberty protection safeguards do not contain new policy or legislation, but rather reflect recent changes in related legislation, organisational structures, good practice and terminology. Following the call for evidence, officials at the Department of Health and Social Care and the Ministry of Justice have worked in partnership with experts to co-produce the new code. This has involved substantively revising and adding new illustrative scenarios to make the code more accessible. It is important that the new code is informed by, and useful for, people who work with the Act and those who are affected by it.

Alongside the new code, we are also publishing additional draft documents, which set out, in detail, how we think the liberty protection safeguards should be implemented and operate. This includes six sets of regulations, information about workforce training, a proposed data specification for national reporting, and an updated impact assessment. We welcome views from everyone with an interest in the liberty protection safeguards on the plans set out in these documents.

Once we have carefully considered feedback to the consultation, we will publish the Government response and the final drafts of the code and liberty protection safeguards regulations. The code and regulations will then be laid in Parliament. People who work with the Act and those who are affected by it will need sufficient time following the publication of those final documents, to prepare for the implementation of liberty protection safeguards.

We had hoped to be able to fully implement the liberty protection safeguards by April 2022. Given the impact of the pandemic on the sectors and professionals who will be called upon to implement these important reforms, we have had to reconsider this aim.

We have committed to an inclusive public consultation lasting 16 weeks from 17 March to 7 July. We expect that responses will be very detailed and will take time to work through to get the liberty protection safeguards right. We are going to set a new fixed date for liberty protection safeguards implementation post consultation to ensure that there is adequate time for implementation.

We look forward to the consultation ahead and will update Parliament when we publish our consultation response.