On 14 July, the Consultation closed on the draft Mental Capacity Act (MCA) and Liberty Protection Safeguards (LPS) Code of Practice. If, like us, you have spent the last few months digesting all 518 pages of the draft code (not to mention the Regulations, impact assessment and training framework documents) before submitting your response, you could be forgiven for thinking you deserve a break.

We know that the proposed “definition of a deprivation of liberty” chapter of the draft code caused concern and our response commented on this, as well as:

  • the proposed changes to section 4B and whether this is an effective replacement for the current urgent authorisation process;
  • the interplay between section 4B and Ferreira type cases (where medical treatment is not a deprivation of liberty);
  • the lack of example case scenarios for acute Trusts;
  • anticipated practical challenges in obtaining the mental health assessment for people in the community; and
  • timing of assessments in the context of hospital discharge.

We would be pleased to discuss our consultation response in more detail if you’d like to get in touch.

So, now what?

The government indicated that they expected to take until “the Winter” of 2022/23 to consider the responses to the Consultation. It will then publish a final version of the Code of Practice and Regulations, which then needs to be laid before parliament for 40 days.

After that, the Regulations putting in place the necessary training for Approved Mental Capacity Practitioners (ie an independent practitioner, who may be involved in the pre-authorisation review in some cases) needs to be brought into force, so they can be trained and ready in good time for the implementation. And there should then be at least six months to plan for implementation and start delivering all the other training required.

On any view, that makes October 2023 the earliest plausible date for implementation, and April 2024, perhaps, more likely (perhaps also so that LPS implementation does not coincide with all the additional burdens on social care from the implementation of changes under the Care Act in October 2023). We understand that the DHSC is keen to maintain momentum and working towards implementation as soon as possible.

In the meantime, organisations can and should continue with their preparations, including:

  • scoping exercises;
  • readying IT systems for the necessary reporting requirements;
  • continue making COPDOL11 applications for ICBs and Local Authorities; and
  • above all, focus on getting the Mental Capacity Act right; this is still fundamental to LPS, and whatever the final form of the LPS looks like, it needs to be built on that solid foundation.

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