The government has launched a consultation to update the Mental Capacity Act Code of Practice to better support those with learning disabilities and autism who may require others to make decisions in their best interests.

The aim of the consultation is to ensure freedoms and human rights of people lacking mental capacity are better protected.

These decisions could include where a person should live, whether assistive technology like sensors or keypad entry should be installed, setting times for refreshments or activities, whether they can leave the accommodation or restraint in certain circumstances among others.

The Mental Capacity Act Code of Practice sets out how carers and practitioners can make these decisions for others on a day-to-day basis while ensuring the individual is both protected and empowered.

First revision of the code since its publication in 2007

The new Liberty Protection Safeguards being consulted on will:

  • introduce an explicit duty to consult with the person and those interested in their welfare to find out the individual’s wishes and feelings about proposed arrangements
  • allow people to have representation including independent mental capacity advocates to ensure their rights are protected and assess what safeguards are necessary when decisions are being made
  • extend safeguards to 16 and 17 year olds and people in any care setting
  • improve the protection of rights for people at the heart of the most complex cases through new mental capacity professional roles
  • better integrate decisions on Liberty Protection Safeguards as part of health and social care assessments
  • involve clinical commissioning groups and NHS trusts in the process to reduce backlogs
  • reduce the number of assessments required to make decisions to help ensure more timely assessments

Minister for Care and Mental Health Gillian Keegan said: "Some of the most vulnerable people in society are lawfully deprived of their liberty to ensure they receive the best possible care, as safely as possible, while they are in hospital or living in a care home. Liberty Protection Safeguards put people at the heart of care, just as we promised in our reform programme and will give them more of a say in their care.

"The proposed changes will speed up processes and increase fairness, ensuring the balance between a person’s human rights and freedoms and their need to receive the right care in the right place at the right time."

This is the first revision of the code since its publication in 2007 and reflects changes in legislation, case law, organisations and good practice which have developed over time.

The consultation will end on July 7 2022.