Policy briefing for parent carer forums
The Government are 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. The consultation is also seeking views on the LiPS regulations, which will underpin the new system.
You can access the consultation here.
This is a joint consultation published by the Department of Health and Social Care (DHSC) and the Ministry of Justice (MoJ).
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.
What is Mental Capacity?
Mental capacity is the ability to make decisions.
This could be small decisions like what we eat or the clothes we wear, or could be much bigger decisions, for example where we live and who we live with.
The Mental Capacity Act (MCA) sets some important key principles.
- The starting point should be that a person must be assumed to have capacity unless it is established that they lack capacity.
- A right to support in making decisions: “A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.” The right to make unwise decisions: “A person is not to be treated as unable to make a decision merely because he makes an unwise decision.”
- Capacity is based on a single decision at a single time, so some people may have fluctuating capacity, meaning they can decide one day and not the next depending on their wellbeing. Therefore, this needs to be taken into consideration when assessing capacity and considering a time when someone is likely to be at their most able to make a decision.
Provision is made in the Children and Families Act to deal with this.
Under the Act, lacking mental capacity has the same meaning as in the Mental Capacity Act (MCA) 2005.
The Mental Capacity Act 2005 sets out what should happen when people are unable to make one or more decisions for themselves. It clarifies the roles that different people play in decision-making, including family carers.
Children under 16
For children under 16, the Mental Capacity Act does not apply. Instead, a child needs to be assessed whether they have enough understanding to make up their own mind about the benefits and risks of treatment – this is sometimes termed ‘Gillick competence’ and means that the child has the competency to give consent and make decisions. The term ‘Gillick’ competence is usually used when considering medical treatments.
What is Deprivation of Liberty Safeguards (DoLS)?
The Deprivation of Liberty Safeguards (DoLS), referred to as ‘safeguards’ are part of the Mental Capacity Act (2005). They aim to protect people in care homes, hospitals, and the community from being inappropriately deprived of their liberty or that the appropriate process is followed if the person does not have capacity and is being deprived of their liberty.
When considering a deprivation of liberty for a 16- or 17-year-old, where the young person lacks capacity to consent themselves to arrangements which meet the ‘acid test’ for deprivation of liberty (i.e., under continuous supervision and control and not free to leave), it is not sufficient for parents to consent to this arrangement. In such circumstances the Court of Protection will often need to approve such an arrangement.
It is recognised that in most situations, providers and families are working in the best interest of a young person. Often when a young person is deprived of their liberty, it is usually with the purpose to safeguard them from harm or harm to others. However, when considering any action, for example preventing a young person from leaving a home, thought should be given to what is the least restrictive option for the young person, whilst keeping them safe.
What are Liberty Protection Safeguards?
The Liberty Protection Safeguards were introduced in the Mental Capacity (Amendment) Act 2019 and will replace the Deprivation of Liberty Safeguards (DOLs) system. The UK government is now consulting on draft regulations which will underpin the new system.
It is envisaged that the new LPS will provide a more streamline system to manage any deprivation of liberty. The implementation of these new arrangements has been delayed and so far, there is no confirmed date when they will be introduced. Therefore, the present arrangements will remain in place for the near future.
When introduced the Liberty Protection Safeguards will provide protection for people aged 16 and above who are or who need to be deprived of their liberty to enable their care or treatment and lack the mental capacity to consent to their arrangements.
People who might have a Liberty Protection Safeguards authorisation include those with autism and learning disabilities who lack the relevant capacity.
What does this mean for forums?
- Forums should make their members aware of the proposed changes.
- Forums may wish to respond to the consultation or share their views with the NNPCF Consultation & Policy Lead to inform the NNPCF response.
- Forums should be aware of the how mental capacity is assessed and decision making supported in their local area for young people with complex needs.
- Forums should consider how this may affect the education and wider outcomes children and young people with complex needs are achieving.