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UK Government consultation on the draft Mental Capacity Act 2005 Code of Practice - BASW response

A key area of concern is the definition of ‘deprivation of liberty’ being used in the draft Code which appears to deviate from that laid out in case law

In July BASW submitted its response to the UK Government’s consultation on the draft Mental Capacity Act 2005 Code of Practice including the Liberty Protection Safeguards (LPS) which will apply to both England and Wales post-implementation.

BASW also submitted an accompanying letter to the Secretary of State for Health and Social Care, which BASW shared with the Secretaries of State for Education and Justice and the Welsh Minister for Health and Social Care. The letter highlighted issues that we feel are fundamental to improving the Code of Practice before it is finalised for implementation.

A key area of concern is the definition of ‘deprivation of liberty’ being used in the draft Code which appears to deviate from that laid out in case law. This is potentially highly problematic for social workers operating under the new framework. We also shared issues raised by independent social workers who have concerns about the new role of Approved Mental Capacity Professional (AMCP) and the way in which this may restrict their ability to work as independents. BASW also requested the setting out of a clear timetable to allow forward planning for the transition to LPS as well as recognition that there is a lot of change taking place currently in social services, especially for those working with children and families in England.

During the process of producing the consultation response, two surveys were issued to members, one of which focused upon the concerns of independent social workers currently working as Best Interest Assessors. A meeting was also held to give members the opportunity to air their views. BASW was also invited by DHSC to nominate three members to attend meetings discussing various aspects of the draft Code which took place in May and June. A working group composed of members and BASW staff - led by the chair of the Policy, Ethics and Human Rights committee, Martin Sexton - oversaw the process of producing the response.