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Draft MCA Code of Practice – first thoughts on the MCA updates

Lawyers at Hill Dickinson outline key elements of the draft Mental Capacity Act Code of Practice.

Understandably, there has been a great deal of focus on the Liberty Protection Safeguards (LPS) part of the new draft Code of Practice, following its publication on 17 March 2022. The aim of this article is to highlight some of our initial thoughts on the proposed changes and updates to the existing MCA part of the code, which are found in Chapters 1 to 11, so here they are:

Key themes 

The government has decided to introduce one overarching Code of Practice to ensure the principles of the MCA are firmly embedded in the LPS from its introduction. 

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We have identified three key themes arising from the new draft code:

  1. The legal angle – it captures key case law over the last 15 years.
  2. The practical angle – it addresses developments in the ways of working and good practice since the MCA came into force in 2007 and is scattered with new case scenarios. Some are fairly straightforward, and others are attracting more attention and discussion.
  3. Tackling the tricky concepts – it aims to address the more challenging concepts which have emerged over the years including assessing capacity, fluctuating capacity and executive functioning, and emergency medical treatment.

We have prepared a deeper dive analysis of the different chapters in the code which can be accessed here

The legal updates

There has been a great deal of case law arising from the Mental Capacity Act 2005 since it came into force. The draft code refers to case law in its footnotes and provides links to BAILII for direct access to the judgments, which is a great step.

For example:

  • At paragraphs 7.21 onwards, the guidance in NHS Trust v Y [2018] UKSC 46 is set out in terms of when to apply to court in life sustaining medical treatment cases, although interestingly Mr Justice Hayden’s guidance on this generally from January 2020 is not explicitly referred to;
  • At paragraph 5.25 (and 7.12) there is reference to commencing the best interests process by identifying the available options as per N v ACCG [2017] UKSC;
  • The holistic approach to best interests as per the decision in Aintree Hospitals NHS Foundation Trust v James [2013] UKSC is referred to at various points, most notably in chapters 2 and 5
  • Paragraph 4.28 refers to the relevant information for the purposes of assessing capacity in different domains as per LBX v K, L and M [2013] EWHC 3230 (Fam) Interestingly there isn’t currently any reference to the case law around access/use of social media (Re A and Re B) and sexual relations (JB).

Of course, the draft code must be selective in how many and which cases to refer to as it cannot cover all the relevant cases since 2007!

It does not deal with the use of contingency planning/anticipatory declarations in the Court of Protection and the case law around that, perhaps because the issue has been subject to evaluation in a number of cases over the years and there is yet to be unifying judicial take on it. Also, perhaps, this has been partially answered by the LPS part of the draft code which provides for a person with capacity to consent in advance to specific arrangements that would otherwise amount to a deprivation of their liberty (12.55-12.68), though that in itself is likely to be controversial.

The practical angle

Practitioners have been applying the principles of the MCA for a number of years now and the draft code aims to reflect some common and sensible working practices. 

In particular:

  • Remote capacity assessments should now be the exception rather than the norm (after the adaptations made during the pandemic) (para 4.83)
  • There is guidance on when capacity assessments should be reviewed (para 4.60)
  • There is recognition that often there is an MDT approach to best interest’s decision making and so the decision maker may be different to the person implementing the care plan (para 5.21)
  • There is more guidance on recording best interest decisions (paras 5.102 to 5.108)
  • When applications to the Court of Protection are made, early consideration must always be given as to how long is reasonable to spend seeking to support the person or reaching agreement before applying to court (para 7.32)
  • There is some guidance on who should bring an application to court, although it is silent on what should be done in those cases which are jointly funded/commissioned, so that is left to locally agreed protocols (para 7.44). 

Whilst there are perhaps some missed opportunities here and there with the guidance and the case scenarios, we are sure that practitioners will welcome the more detailed practical guidance. 

Tackling the tricky concepts

The draft code does also tackle the inherently challenging concepts of assessing capacity, fluctuating capacity, executive functioning and emergency medical treatment.

Arguably the most significant change is the re-ordering of the test of capacity. This aims to bring the test more into line with the statutory principles, as interpreted by the Court of Appeal in PC v City of York [2013], making clear that the first question is P’s ability to make a decision (ie understand, retain and use the relevant information), and only then, if they cannot, whether that is due to a disturbance or impairment in the functioning of the mind or brain. This is intended to help avoid the risk of assumptions from taking P’s diagnosis as the starting point.

The draft code deals with the concept of executive functioning and the need to evidence a repeated mismatch between what the person says and what the person does to demonstrate a lack of capacity for the relevant decision. 

The paragraphs on fluctuating capacity flag the concept of the isolated decision versus the repeated decision. There was perhaps scope for more detail in terms of the different categories of fluctuating capacity and the micro versus macro decision making, which challenges practitioners and courts. However, the issue is so person and case specific that it perhaps does not lend itself to much more expansion within the code. 

There is an interesting and thought-provoking case scenario involving Mr R who has early onset dementia and makes a valid LPA effectively within an hour whilst he has capacity to make that decision.

The draft code (at paragraphs 6.17 to 6.19) also recognises  that there are occasions where there is no alternative but to move or transfer a person to another residence/place and the draft MCA part of the code alludes to the issue of the ‘conveyance/transfer’ and when this might or might not be covered under section 5 of the MCA and therefore whether it amounts to a deprivation of the person’s liberty or not. There is more in the LPS part of the code as it relates to emergency measures (the new s4B) and portability of LPS authorisations which may also be applicable. Some case scenarios around this issue would be helpful as we often are asked to advise clients on transfers between settings for medical treatment.

Final thoughts 

There is of course more we could (and will) say on the draft code as it makes its way through the consultation process and beyond but we hope this has been a helpful summary of some of those key themes arising from it. 

Ben Troke is Head of Health Advisory - Leeds, Joanna Crichton is a Legal Director and Amy Clarke and Emma Pollard are Senior Associates at Hill Dickinson.

Join them on 23 June 2022 for the next in their series of webinars in preparation for the implementation of the Liberty Protection Safeguards. This will include a closer look at some of the key issues arising from the Code of Practice.

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