Open consultation

Changes to the MCA Code of Practice and implementation of the LPS

Applies to England and Wales

Summary

This consultation seeks views on proposed changes to the Mental Capacity Act 2005 Code of Practice and implementation of the Liberty Protection Safeguards.

This consultation closes at

Consultation description

We are consulting on the proposed changes to the Mental Capacity Act 2005 (MCA) Code of Practice, which includes guidance on the new Liberty Protection Safeguards (LPS) system. This consultation is also seeking views on the LPS regulations, which will underpin the new system.

This is a joint consultation published by the Department of Health and Social Care (DHSC) and the Ministry of Justice (MoJ).

The MCA applies in England and Wales, but some aspects of its application are devolved in Wales. The Welsh Government has therefore informed this consultation.

The LPS will apply to people over the age of 16, and the Department for Education (DfE) has been involved in the development of this new system.

The government is consulting on a number of documents.

Code of Practice

The MCA was implemented alongside a Code of Practice which now requires updating for 2 key reasons:

  1. the existing Code guidance needs updating in light of new legislation and case law, organisational and terminological changes, and developments in ways of working and good practice
  2. the new LPS system means that additional guidance needs to be added to the Code

LPS regulations

The LPS were introduced in the Mental Capacity (Amendment) Act 2019. The UK government is now consulting on 6 sets of draft regulations which will underpin the new system. When enacted, 4 of these sets of regulations would apply in England only. The remaining 2 sets of regulations would apply to both England and Wales.

Separately, the Welsh Government has published 4 sets of regulations which would apply in Wales.

LPS implementation products

We are publishing a number of documents to help the sector prepare for implementation. These products are not subject to formal consultation, but we welcome feedback as part of the consultation process. These are:

  • impact assessment – this constitutes the government’s assessment of the financial impact of LPS, including the Code and regulations, as proposed for consultation
  • LPS workforce and training strategy – this covers:
    • workforce planning
    • the learning, development and training on offer
    • what different organisations and sectors can do now to begin preparing for LPS
  • LPS training framework – which makes recommendations about subject areas that LPS training should cover
  • LPS National Minimum Data Set – which will be used to standardise the collection and submission of notification data that is sent to the monitoring bodies and NHS Digital
  • equalities impact assessment – which assesses the potential equality impact of the design of LPS overall, including the Mental Capacity (Amendment) Act 2019, the LPS regulations and the Code

The Welsh Government is holding a separate consultation on certain aspects of the LPS design in Wales.

If you work in, or engage with, the Welsh health and social care system, please consider responding to the UK government and Welsh Government consultations.

Documents

Ways to respond

Published 17 March 2022
Last updated 21 June 2022 + show all updates
  1. The closing date has been extended to 14 July 2022.

  2. Replaced the ‘Draft MCA Code of Practice’ with an updated version. Corrections are as follows. Paragraph 3.33 now refers the reader to paragraph 14.68, which explains what information the Responsible Body must publish to ensure that the person who is going through the LPS process and their Appropriate Person understand certain matters. The text in paragraph 4.64 has been deleted as it had been inserted in error. Paragraphs 7.46 and 7.57 now refer the reader to paragraph 7.35, which explains when an application can be made to the Court of Protection regarding the LPS. In chapter 15, the first paragraph in the ‘quick summary’ section on page 317 has been deleted as it had been inserted in error. In chapter 21, the first paragraph in the ‘quick summary’ section on page 396 now explains that most of the Mental Capacity Act applies to young people aged 16 to 17 years, who may lack the relevant capacity to make a particular decision.

  3. First published.