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Amend Mental Capacity Act code of practice to address covert medication, human rights: Bar Council

The Mental Capacity Act code of practice must be updated to address issues around covert medication, human rights and social care, the Bar Council has said.

Giving evidence to a Ministry of Justice consultation, the Bar Council highlighted how the issue of covert medication was not currently discussed in the Code but had recently been addressed by the courts.

“It has been clarified that covert medication is a serious interference with an individual’s right to respect for private life under Article 8. Even when a patient is incapacitated, s/he ‘should not be subjected to anaesthesia or invasive surgery without, as a minimum, being informed in sensitive and appropriate language as to what is about to be done to them before it is done’ (An NHS Trust v The Patient [2014] EWCOP 54, at [22]).”

The submission also said that “the authors should also have regard to the guidance given by District Judge Bellamy at [43] of AG v BMBC & Anor [2016] EWCOP 37.”

The Bar Council also suggested that those updating the Code consider including a chapter on Human Rights, which it said should introduce, in particular, the United Nations Convention on the Rights of Persons with Disabilities.

It branded the current chapter on protections for people who lack capacity to make decisions for themselves as “out of date”, citing the fact that there has been “significant wholesale reform of social care legislation since the Code was drafted” and that “there is now for the first time a statutory framework for adult safeguarding”.

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