Minister for Care and Mental Health (): This is a joint statement
with the Parliamentary Under-Secretary of State for the Ministry
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 14 March to 4 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.
