The UK Government has launched an open consultation around changes to the MCA Code of Practice and implementation of the LPS. The consultation document is available for anyone to access and can be downloaded in a number of different formats, including a draft version of the new Code. Professionals are encouraged to read the document(s) as appropriate and feedback via online forms. There is no requirement to study the complete set of proposals in order to take part.
After the consultation has been completed, the feedback data will be reviewed and further amendments will be made as necessary before the proposal is put before Parliament. After which, if no objections are raised, the proposals will be moved into law and the implementation process begun. I would estimate this would be in early 2023.
In this, the first in a series of blogs on the consultation, we aim to explore some of the key elements to emerge from the document and the potential impacts for those working with the Mental Capacity Act.
The consultation document, gives useful context for the proposed changes to the Code of Practice. This includes important case law such as Cheshire West, and its impact on applications for Deprivation of Liberty Safeguards (DoLS), and how in 2019/2020 there were 264,000 applications alone, which the systems are struggling to meet.
This led to the Law Commission review, that proposed the amendment of the Liberty Protection Safeguards (chapters 12-22), to ensure the safeguards are used appropriately across settings, widening to 16 years and above and streamlining processes to reduce administrative burdens to benefit all. Not only this, but expanding upon who the Responsible (Supervisory) Body is, adding NHS bodies, CCGs/ICBs and Welsh Health Boards to the Local Authorities ongoing role.
There is also a noteworthy restructuring of when it is necessary to refer to the Court of Protection (COP). Previously for DoLS in community settings and alternate settings beyond healthcare (as well as those under 18), it had been necessary to proceed via the COP. However, this has now been removed, enabling the same process as a standard DoLS, to ensure efficient processes that benefit the individual. This promotes COP oversight and focus upon complex cases that require judicial support.
Key elements from the opening sections
The first two sections of the consultation provide an overview of the wider MCA and its accompanying Code of Practice proposals. Each part is then broken down in subsequent chapters alongside worked examples showing how the changes apply in context.
The purpose of the Code of Practice is to support individuals aged 16 and above in England and Wales to have Autonomy, empowering them to make decisions for themselves, with support if needed. Those who lack capacity to make a specific decision at a specific time will be supported to be a part of all decision making, with their wishes and views at the centre of Best Interest decisions. For which, guidance is included in chapter 5.
In the document, the Code is recognised to have statutory force for professionals, Lasting Power of Attorneys, those caring for individuals who may fall under the Act, and certain other roles. Therefore, this Code of Practice for the Mental Capacity Act (2005, 2019) directs our duty of care in supporting those we work alongside. It emphasises how a failure to adhere to the Mental Capacity Act and its Code of Conduct can be used as evidence at tribunal, civil or criminal proceedings before a court of law. Consequently, making it vital that any professional or family/friend working alongside an individual, who may lack capacity for a particular decision, understand all parties’ Rights and Responsibilities.
This includes relevant parties needing to have a basic of knowledge of the Mental Capacity Act in proportion to their role. This is in order to apply principles in everyday decisions and determine what constitutes ‘reasonable belief’ for lack of capacity. With this in mind, the updates also state when there is a need of professional involvement in particular circumstances.
Defining ‘lack of capacity’
In the draft Code of Practice, ‘capacity’ is defined as ‘the ability to make a decision, with support if necessary’ (see: Chapter 4). A person who lacks capacity is therefore ‘a person who lacks capacity to make a particular decision or take a particular action for themselves at the time the decision or action needs to be taken’.
It is certainly encouraging to see the emphasis on the time and decision-specific nature of decision-making. However, when considering decision-making, I would direct reflection upon the Mental Capacity Assessment, which determines an individual needs to able to understand and retain relevant information, in order to weigh up options for the decision, communicating their choice.
What the Act doesn’t cover
The opening sections of the draft Code of Practice further stipulates specific situations that the MCA does not cover. These are decisions that can never be carried out on behalf of a person who lacks capacity under the Act, whether they be family members, attorneys or the Court of Protection. These decisions include consenting to marriage, sexual relations, adopting a child and voting.
The Code then goes onto reenforce the roles and responsibilities introduced within the Mental Capacity Act (2005). These include: Lasting Power of Attorney, Office of the Public Guardian, Court of Protection, Associated Deputies and Responsible Bodies.
The Code then refines two roles: Best Interest Assessors become ‘Approved Mental Capacity Professionals’ while the Relevant Person’s Representative becomes the ‘Appropriate Person’.
The Code then adds in extra safeguarding roles for Monitoring Bodies OFSTED and CQC. These are discussed further in Chapters 7-10, then 14, 15, 18 and 20.
Five statutory principles
One of the most important elements of the changes to the Code of Practice is the strong emphasis on the five ‘statutory principles’ of the Mental Capacity Act in order to emphasise person-centred practice that promotes the individual’s autonomy and inclusion. From which, there is now an explicit duty to consult with the individual and relevant parties, if determined to lack capacity for a specific decision at that time.
On top of which, it is hoped the proposals will be integrated within everyday practice to reduce duplication of assessments, working alongside the Care Act (2014), Health and Social Care Act (2012) and Equality Act (2010), amongst others.
Having completed the consultation document and worked through the amended Code of Practice, I find myself generally reassured and encouraged at the direction this has taken.
Questions have naturally arisen from my reading, considering the broadening of Responsible Bodies, monitoring and support within private sectors, monitoring in the community as well as training of Appropriate Persons and awareness around their role. There will no doubt be difficult areas of transition into practice, however due care appears to have been given to how this will look in terms of training, an implementation framework and improved processes.
I would observe that in order to do this effectively, proportionate funding needs to be provided for awareness raising, education and to these professionals whose roles are broadening. As this has potentially been one of the previous contributing factors to DoLS backlogs, cases of non-adherence to the Mental Capacity Act and other issues.
As you will gather, the consultation on proposed changes to the Mental Capacity Act Code of Practice includes a number of incredibly long and detailed documents. Far too much to talk about in a single blog. Therefore, please do check back regularly for further updates as I sift through the material and share some of my highlights and points of interest.
We will also soon be launching live webinars looking at the changes to DoLS with the new LPS; as well as other relevant areas of interest to professionals. Any questions, do please get in touch.