MCA update from the DHSC / MOJ – a Code update is on the cards.

In the most recent DOLS Newsletter published on 20 June 2023, the DoLS and Mental Capacity team at the DHSC have given the following update: 

We understand that the announcement in April to delay the implementation of the Liberty Protection Safeguards beyond the life of this Parliament was disappointing news for many. Again, we would like to thank everyone who engaged with us in the development of the policy and during the consultation, for the detailed feedback we have received.

We are writing to you to say that we remain committed to publishing a response to the consultation, which we hope to publish later this year. This response will summarise the valuable feedback we received, including the main themes we identified during our analysis of the responses.

We would also like to take this opportunity to update you on the work to review and update the Mental Capacity Act 2005 Code of Practice (MCA Code) jointly with the Ministry of Justice (MoJ). We would like to assure you that both MoJ and DHSC remain committed to updating the MCA Code, to ensure that changes in case law and good practice since its publication in 2007 are incorporated, and to reflect the feedback stakeholders have provided both before and during consultation.

As such, we are currently planning to work with the MoJ to revise the MCA Code, considering references on the Deprivation of Liberty Safeguards (DoLS) where appropriate, with the aim of ensuring all those who work with the Act and those who are affected by it have up-to-date statutory guidance. We will continue to work closely with stakeholders and further details on this work will be shared with you in due course.

The Deprivation of Liberty Safeguards remain an important system for authorising deprivations of liberty. It is vital that health and social care providers continue to make applications in line with the Mental Capacity Act (MCA) 2005, and that Supervisory Bodies continue to fulfil their responsibilities with respect to authorising DoLS applications under the MCA to ensure that the rights of those who lack the relevant capacity are protected.

Thank you for your continued engagement and interest in this important area. Please do get in touch if you have any questions.

As always, we welcome your feedback on the content of our regular newsletters and encourage you get in touch with us at with any queries or comments. If this newsletter has been forwarded to you, and you’d like to be included on our LPS and DoLS mailing list, please contact the email address above – we will add you to it.

[Whilst we wait for the revised Code, it may be worth remembering that there is an unofficial update prepared by colleagues and I at 39 Essex Chambers highlighting the passages that are dangerous in the current Code.  It also worth reading the update carefully – it does not sound as if there is the intention to update the DOLS code, as opposed to the main Code]

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