Changes to the Mental Capacity Act (“MCA”) Code of Practice and implementation of the Liberty Protection Safeguards (“LPS”)

The LPS regime will be the new authorisation process for the deprivation of liberty of those aged 16 or over where they lack the mental capacity to consent to their care arrangements. The LPS framework will replace what is currently known as ‘DoLs’.

The changes are generally seen as a welcome step forward from the often bureaucratic and complex process that underpins the authorisation regime at present. The changes will see the authorisation process extended to those aged 16 or over, the introduction of Approved Mental Capacity Practitioners and it will also apply to domestic and supported living settings. The bodies responsible for the authorisation process will include CCGs, NHS Trusts, as well as Local Authorities.

Key Points

  1. The new scheme will extend protections to more people, including young people aged 16 and 17.
  2. The scheme will apply to individuals residing in domestic settings who need to be deprived of their liberty. This will include a person’s own home/family home and supported living arrangements.
  3. Three assessments will form the basis of the authorisation: (1) a capacity assessment, (2) a medical assessment, and (3) a ‘necessary and proportionate’ assessment.
  4. There will be a duty to consult those caring for the person and those interested in the person’s welfare.
  5. Authorisations will be permissible in longer blocks – 12 months, a further 12 months and up to a maximum of 36 months if appropriate.
  6. One authorisation will be able to cover multiple settings.

The Government’s consultation on the proposed changes to the Code of Practice, which includes guidance on the LPS framework has now opened and can be accessed here.

Alongside the consultation, the Government have published six draft regulations which will underpin the new LPS framework: four will apply in England only and the other two will apply in England and Wales. The Government also announced the publication of a number of other documents to help prepare and support the sector and those who are likely to be working with the new regime, for example, there are workforce and training strategies along with draft impact and equalities assessments.

Although no dates have been announced, it is expected that once the consultation closes (on 7 July 2022) the Government will commence its consideration of consultation responses with a response by late 2022 or earl 2023. At that point it is expected that there will be an implementation period to allow for training and preparations to finally launch the new LPS regime sometime thereafter. No implementation date has been set however – the Government intend to set a date when they publish their consultation response.

If you need any further information on Liberty Protection Safeguards and/or advice on the impact of the changes then please contact Lee Russell, Partner in our Housing Management and Property Litigation team.

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