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Government consults on changes to the Mental Capacity Act Code of Practice and implementation of the LPS

The government is consulting on the proposed changes to the Mental Capacity Act 2005 (MCA) Code of Practice, which includes guidance on the new Liberty Protection Safeguards (LPS) system. This consultation is also seeking views on the LPS regulations, which will underpin the new system.

This is a joint consultation published by the Department of Health and Social Care (DHSC) and the Ministry of Justice (MoJ).

The MCA applies in England and Wales, but some aspects of its application are devolved in Wales. The Welsh Government has therefore informed this consultation.

The LPS will apply to people over the age of 16, and the Department for Education (DfE) has been involved in the development of this new system.

The government is consulting on a number of documents.

Code of Practice

The MCA was implemented alongside a Code of Practice which now requires updating for two key reasons:

• the existing Code guidance needs updating in light of new legislation and case law, organisational and terminological changes, and developments in ways of working and good practice

• the new LPS system means that additional guidance needs to be added to the Code.

LPS regulations

The LPS were introduced in the Mental Capacity (Amendment) Act 2019. The UK government is now consulting on six sets of draft regulations which will underpin the new system. When enacted, four of these sets of regulations would apply in England only. The remaining two sets of regulations would apply to both England and Wales.

Separately, the Welsh Government has published four sets of regulations which would apply in Wales.

LPS implementation products

The government has published a number of documents to help the sector prepare for implementation. These products are not subject to formal consultation, but feedback would be welcomed as part of the consultation process. These are:

• impact assessment – this constitutes the government's assessment of the financial impact of LPS, including the Code and regulations, as proposed for consultation

• LPS workforce and training strategy – this covers:

• workforce planning

• the learning, development and training on offer

• what different organisations and sectors can do now to begin preparing for LPS

• LPS training framework – which makes recommendations about subject areas that LPS training should cover

• LPS National Minimum Data Set – which will be used to standardise the collection and submission of notification data that is sent to the monitoring bodies and NHS Digital

• equalities impact assessment – which assesses the potential equality impact of the design of LPS overall, including the Mental Capacity (Amendment) Act 2019, the LPS regulations and the Code.

The Welsh Government is holding a separate consultation on certain aspects of the LPS design in Wales, as to which click here.

For all the consultation documents relating to England and Wales, click here.

25/6/22