The Mental Capacity Act/Liberty Protection Safeguards Consultation

Practitioners should take note of the changes to the MCA Code of Practice already in force, writes Jonathan Landau.

After much delay, the Department for Health and Social Care (DHSC) has launched a consultation on the updated Mental Capacity Act (MCA) Code of Practice. The new Code of Practice will be a single code encompassing guidance both on the MCA and the new Liberty Protection Safeguards Consultation (LPS) provisions. The consultation is open for 16 weeks and whilst the DHSC is consulting on updates the current MCA Code, it is ‘particularly interested’ in responses relating to the LPS. That is of course explicable by the fact that the LPS are new and DHSC will want to ensure that they are workable and serve their purpose, particularly after the failings of DoLS. 

However, professionals working with the MCA on a day-to-day basis may find it helpful to study the other changes to the Code of Practice relating to the MCA. They largely reflect improved guidance on the MCA and developments in the law since the original Code was issued as long ago as 2007. Aside from aspects relating to the LPS, which of course are yet to be implemented, the other changes reflect current law.

Examples include (among others):

1. Introducing the concept of ‘considering capacity’ to the Code: asking whether there is a proper reason to doubt that the person has the capacity to make the decision.
2. Changing the order for the test of capacity so that an assessor should first consider whether the person is able to make the decision and only go on to assess whether there is an impairment or disturbance in the functioning of the mind if they are unable to.
3. Explaining the concept of ‘decision-maker’ making it clear that that person does not have a power to make a decision on behalf of the person (like an LPA or Deputy) but rather will be the person who needs to consider whether an act is in a person’s best interests including those who need to establish that in order to be protected from liability.
4. Following the case of Re Y, setting out that decisions for life-sustaining treatment are only necessary when there is a difference in opinion or the way forward is finely balanced.
5. Following the Supreme Court case of N v ACCG, explaining that a decision on behalf of a person may only be between available options.
6. Following Aintree v James, providing that a treating doctor cannot be required to provide life-sustaining if it is not a treatment that is reasonable to give.
7. Following Winspear v City Hospitals Sunderland, clarifying that a failure to consult properly with someone interested in the person’s welfare when it is practicable and appropriate to do so will mean that the decision-maker cannot rely upon the defence in section 5 of the MCA.

Professionals and trainers working with the MCA may wish to use the consultation to update their knowledge of these changes because, unlike the LPS, they should already be applied.

Jonathan Landau is a barrister at 5 Essex Court.