Although the Code needs to be updated someone with Alzheimer’s or who is at personal risk, for example, could be affected. 

 

The Mental Capacity Act (MCA) protects the rights of people who don’t have mental capacity to make decisions about their care or treatment. The new Code of Practice provides guidance for their carers, including attorneys appointed under a lasting power of attorney (LPA) and it includes liberty protection safeguards (LPS) to replace the existing deprivation of liberty safeguards (DoLS). 

 

LPS are intended to be authorised in advance by a 'responsible body' such as a hospital manager, a clinical commissioning group or, if someone is in a care home or living in the community, by the local authority. It must be clear that the person concerned lacks capacity to agree to their care arrangements due to a mental disorder and that the arrangements are proportionate and necessary to prevent harm. 

 

However, concerns have been raised about the guidance on these safeguards. Most importantly, these concerns have highlighted how to identify someone who is at risk of being deprived of their liberty. They should have an opportunity to challenge whether it is lawful to do so but if the situation isn’t clearly recognised then proper assessments might not be completed. Then there wouldn’t be any formal opportunity to overturn the decision. 

 

The changes include guidance on implementing the LPS system to provide protection for people aged 16 and above who are, or who need to be: 

• deprived of their liberty in order to enable their care or treatment 

• lack the mental capacity to consent to their arrangements. 

 

The government says the changes will simplify the process and include families so that assessments can be completed more quickly. They would allow the NHS, as well as local authorities, to make decisions about patients, considering restrictions as part of their overall care package. They would, for example, take away the need for repeat assessments and approvals when someone needs to move between their care home, hospital and the ambulance service. 

 

The Law Society says that the new code must maintain the legal rules used to explain how deprivation of liberty (DoL) is correctly defined. If the definition of DoL is changing it should be through legislation so that the impact can be fully assessed. This should include maintaining people’s rights to challenge care and treatment decisions. 

 

The government has confirmed that DoLS and LPS will run in parallel for up to a year so that there can be a smooth transition in people’s care. However, no new DoL applications will be made after the date that LPS is introduced. We don’t yet know when LPS, originally due to be introduced in April 2022, is likely to come into effect. 

 

Putting an LPA in place means trusted friends or family members can be part of the process of deciding about your care, treatment and liberty.