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Mental Capacity Act government consultation

30 March 2022

The government has begun consulting on draft amendments – responses need to be sent by the 7th July 2022.

The government has begun consulting on draft amendments to the Mental Capacity Act 2005 (MCA 2005) Statutory Code of Practice and the implementation of the Liberty Protection Safeguards (LPS).

LPS is due to replace the Deprivation of Liberty Safeguarding (DoLS) procedure later this year.

The aim of LPS is to provide a streamlined system with independent non judicial oversight of all cases where some one deemed to be deprived of their liberty wherever this may be. If the individual opposes their deprivation, there is initially a review by a new professional with still ultimately the opportunity to appeal to the COP.

The current arrangements allow the local authority to authorise a deprivation of liberty in a care home or a hospital following the carrying out of assessments by a best interest assessor and a doctor. However for people living elsewhere such as supported living or in their own home this has required the local authority (or NHS where CHC funded) to make an application to the court for this to be authorised.

The plan is that under the LPS all these situations will now be dealt with in the same way and unless there is an appeal they will not need to involve the Court of Protection.

So the LPS will cover the person in a care home, the 16 year old in their own home, the person living in a supported living placement.

This will be particularly helpful for the cases which currently have to go to court, some local authorities have waiting lists of years for making the applications in these cases.

There is a non-statutory definition of what amounts to a deprivation of liberty.

The process of authorisation should involve at least 2 professionals involved in carrying out the 3 assessments and determinations required with a degree of independence from each other

The code also sets out when it is possible to give or withhold medical treatment without going to court

The code sets out as well when the court must be involved in medical treatment cases, welfare cases and situations involving a person’s property and affairs.

The code comments that property and affairs deputies will be far more common than health and welfare deputies.

Responses need to be sent in by 7th July 2022

If you would like to discuss any aspect of this article further, please contact Hywel Jenkins or any other member of the Health and Care team 0114 267 5300.

You can also keep up to date by following Wrigleys Health and Care team on Twitter

The information in this article is necessarily of a general nature. The law stated is correct at the date (stated above) this article was first posted to our website.Specific advice should be sought for specific situations. If you have any queries or need any legal advice please feel free to contact Wrigleys Solicitors. 




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Hywel Jenkins


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