Eleven years on: revising the Mental Capacity Act Code of Practice

Since the MCA came into force in April 2007, its Code of Practice (the Code) has been used extensively by a wide range of stakeholders from paid carers to healthcare professionals, or people acting as attorneys or as deputies appointed by the Court of Protection, who have a formal duty to adhere to the Code.

But the Code is also for those no less important relationships the individual has with family, friends and less formal carers – the Code is a fundamental piece of guidance, helping them to understand the practical insight the Act offers to those who lack capacity.

It is described as a key document supporting the Act with practical guidance on how it will operate on a day-to-day basis and offering best practice examples. But over the past 11 years, there have been changes in case law, and lessons learned through practical use of the Code, and refinement of the Code is now required in order to better reflect current needs. The Ministry of Justice issued its call for evidence on 24 January, inviting a range of stakeholders to develop the new Code and “ensure it is an effective and useful product”.

But what about the deprivation of liberty safeguard reform and how is it aligned to the MCA Code of Practice revision?

So here’s a snapshot of where we are.

In 2017, the Law Commission recommended that DoLS be reformed with a new system: Liberty Protection Safeguards. The LPSs are based in care planning and provide a simpler and more streamlined system, providing independent oversight of all authorisations and a strengthened role for and ensuring consultation with families and carers. Individuals unhappy with arrangements will have them reviewed by an Approved Mental Capacity Professional (AMCP) and also have the right to appeal to the Court of Protection. Unlike DoLS, the LPS will cover the 16 plus age group. In addition, the new LPS will be supported by a new Code of Practice – this code will complement and be integral to the revised MCA Code.

The Mental Capacity (Amendment) Bill is in the Commons awaiting a date for its report stage and third reading – the Public Bill Committee having completed its work last week has reported on the Bill with its amendments. You can view the progress of the Bill here.

A new Mental Health Bill in the offing

Following the publication of the independent review of the Mental Health Act, the Government has announced that it will introduce a new Bill soon and when parliamentary time allows. Any changes to the MCA Code must align with the new Mental Health Act.

Have your say

Share your thoughts and provide feedback on how best to improve the Code by completing the online survey. Questions have been divided by each chapter of the Code – you have the option of providing comments on as many of the sections as you wish. But hurry as the deadline for feedback is 7 March 2019.

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