13th Apr 2022

Changes to the Mental Capacity Act Code of Practice

The Department of Health and Social Care has opened a long-awaited consultation on proposed changes to the Mental Capacity Act Code of Practice (‘the Code’).

The Code provides information about how the Mental Capacity Act 2005 (‘MCA’) works in practice and gives guidance to anyone who is working with and/or caring for a person who may lack capacity to make particular decisions.

Why are changes required?

The Code is outdated as legislation, case law, terminology, and good practice has changed since it was first published in 2007.  

Additionally, the Code does not currently cover the new Liberty Safeguard Procedure (LSP) which will be implemented by The Mental Capacity (Amendment) Act 2019 and will replace the existing Deprivation of Liberty Safeguards. Changes therefore need to be made to the Code to give guidance on the new LSP system before it comes into effect.

Changes to the Code

Key proposed changes to the Code include:

  • The order for the test of a capacity assessment has been changed and now provides that the starting point should always be whether a person is able to make the decision in question, and it is only if the person cannot make the decision that consideration should then be given to whether there is an impairment or disturbance in the functioning of the mind or brain and that this inability to make the particular decision is due to the impairment or disturbance.
  • Amended guidance is also given about how to approach capacity assessments in different situations, for example, where there is fluctuating capacity.
  • Clarification about the various factors to be considered in making best interest decisions, including emphasis on the importance of wishes and feelings in decision making. The guidance on the approach to making decisions about life-sustaining treatment has also been amended and further advice is given on best practice in recording best interest decisions.
  • New guidance about the steps a person making decisions on behalf of an incapacitated person should take to allow them to rely upon the defence in section 5 Mental Capacity Act 2005 (which absolves them from liability if they reasonably believe that the person in question did not have capacity and they were acting in their best interests).
  • Updated advice is given about Lasting Powers of Attorney (LPAs), for example, in relation to cancelling LPAs, instructions and preferences, and clarification about the limits of decisions an Attorney can make.
  • In relation to deputies, the guidance has been revised to reflect the approach of the Court broadly that although there is no presumption against the appointment of a health and welfare deputy, in practice far fewer appointment are made compared to property and affair deputies. Additional amendments include guidance on how to deal with conflict of interests and when deputies can delegate tasks and make gifts.
  • The chapter on Advance Decisions to Refuse Treatment clarifies when an application to Court may be required and states that if there are proper reasons to suggest that a person did not have capacity, it will be for them, or someone acting on their behalf, to demonstrate this.
  • The Court of Protection chapter provides updated guidance on when it is possible to give or withhold medical treatment without applying to Court and covers which cases should be referred to the Court and in what circumstances.
  • The guidance in relation to cases involving children and young people has been updated in light of case-law and confirms that where a young adult lacks capacity to make a particular decision, they may be able to decide whether to proceed under the Mental Capacity Act or by way of obtaining consent from a person with parental responsibility. The chapter also provides advice about the interaction between the Mental Capacity Act and other legislation concerning children.
  • The other main changes primarily deal with the practical operation of the new LSP and the definition of the meaning of ‘deprivation of liberty’.

The consultation is open until 7th July 2022 and the draft documents can be accessed here

If you have any question about this article or any of the issue raised, please contact Berwins’ Life team on 01423 543102.

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