Single code of practice planned for Mental Capacity Act and deprivation of liberty

A single code of practice will be developed for the Mental Capacity Act 2005 and the new Liberty Protection Safeguards (LPS) system that will govern authorising deprivations of liberty in health and social care settings.

The Department of Health and Social Care said it planned to produce a single draft code for consultation next spring, in a newsletter setting out its proposed timetable for implementing the LPS in April 2022. Currently, there are separate codes for the MCA and the Deprivation of Liberty Safeguards, which the LPS will replace.

The code will provide practical guidance on implementing the MCA and LPS and social workers, health professionals, advocates, attorneys and deputies will all be required to have regard to it in relation to relevant functions.

The MCA code of practice was published in 2007 and, in January 2019, the Ministry of Justice launched a consultation on revising it to take account of practical lessons learned since the act’s implementation and relevant case law. It was also an opportunity to iron out ambiguities and inconsistencies in the existing code. However, this process was put on hold.

Delayed implementation

The LPS had been due to be implemented in October 2020, which would have required a code of practice and regulations specifying the detail of how the scheme would work being published for consultation in the early spring at the latest. This did not happen and Covid-19 then pushed the timetable back even further, leading the government to announce, in July, the revised implementation date of April 2022.

The LPS newsletter said that, provisionally, the consultation on the code of practice, and regulations on the new safeguards, in spring 2021 would be followed by these being laid before Parliament in the autumn, with a final code published in winter of next year.

While the LPS as a whole will be implemented in April 2022, regulations bringing into force the approved mental capacity professional role (AMCP) would likely come into force in January 2022 on the proposed timetable. AMCPs will have a critical role in the new system, carrying out pre-authorisation reviews to ensure that the conditions for depriving a person of their liberty had been met. These are that:

• the person lacks capacity to consent to the arrangements;
• the person has a mental disorder within the meaning of section 1(2) of the Mental Health Act 1983; and
• the arrangements are necessary to prevent harm to the person and proportionate in relation to the likelihood and seriousness of harm to the person.

AMCPs, most of whom will likely be social workers, will carry out reviews in cases where it is believed that the person objects to their proposed care or treatment arrangements, the arrangements will mainly take place in an independent hospital or when the body responsible for authorising the deprivation refers the case to an AMCP. The role will replace that of best interests assessor.