A new draft MCA code of practice

Overview

The long-awaited consultation on the draft new code to the Mental Capacity Act (“MCA”) has recently been published. We previously commented on the aspects of this relating to the Liberty Protection Safeguards (“LPS”) but the new code updates much of the old code as well. This briefing looks at the headline issues.

The new code combines the guidance on the MCA and the LPS into one document for ease and to reflect the importance of both capacity and best interests in each.

As before, the draft code supports implementation of the MCA and provides guidance on the Act’s provisions including the all-important best interests and capacity issues. It also provides updated guidance in relation to Lasting Powers of Attorney, Advance Decisions to refuse treatment, and the role of the Court of Protection together with guidance on the interface between the Mental Health Act and the MCA, and position of children.

The new draft code is not just a rehash, it has been updated to reflect the latest case law and practice which is to be welcomed.

Capacity

The Mental Capacity Act clearly has the issue of capacity as a central concept. The new draft code provides additional guidance on the assessment of this, reflecting guidance from the courts as to how this is to be done.

In summary:

• the first step is to consider whether the person can make their own decision because they are able to understand, retain, use and weigh the relevant information and to communicate their decision
• it is only if the individual cannot make their own decision that one then moves to the next step of considering whether they have an impairment or disturbance in the functioning of their mind or brain, and if so whether their inability to make a decision is because of that impairment or disturbance.

The code also provides guidance on how to conduct capacity assessments including the difficult issues of assessment where there is perceived to be a problem with fluctuating capacity or executive dysfunction.

The section 5 defence and the role of the court

Section 5 of the Mental Capacity Act provides:

(1) If a person (“D”) does an act in connection with the care or treatment of another person (“P”), the act is one to which this section applies if—

(a)before doing the act, D takes reasonable steps to establish whether P lacks capacity in relation to the matter in question, and

(b)when doing the act, D reasonably believes—

(i)that P lacks capacity in relation to the matter, and

(ii)that it will be in P’s best interests for the act to be done.

(2)D does not incur any liability in relation to the act that he would not have incurred if P—

(a)had had capacity to consent in relation to the matter, and

(b)had consented to D’s doing the act.

(3)Nothing in this section excludes a person’s civil liability for loss or damage, or his criminal liability, resulting from his negligence in doing the act.

(4)Nothing in this section affects the operation of sections 24 to 26 (advance decisions to refuse treatment).

The aim of section 5 is to implement the old common law doctrine of necessity, and enable decisions to be taken for those who lack the capacity to do it themselves. The section in effect provides a defence for those who make those decisions and act accordingly.

The new draft code provides clear guidance on the steps required to rely on the defence, especially in relation to more serious interventions. In addition, the code incorporates the latest case law indicating when it is possible to give or withhold medical treatment without going to court, and specifically when the court must or should be involved in medical treatment cases, welfare cases, or property and affairs matters.

The draft code also updates the guidance in relation to Deputies and Advance Decisions to refuse treatment, including how to deal with cases where there is subsequent challenge as to whether the individual had capacity when the Decision was made. It makes it clear that the presumption of capacity is not retrospective (therefore if someone lacks capacity now, evidence will be required that they did indeed have capacity previously).

Children, young people and the Mental Capacity Act

The code of practice defines ‘children’ as anyone below the age of 16, and ‘young people’ as those aged 16 or 17.

A person lacks capacity if, at the material time, they are unable to make a particular decision by themselves, because of an impairment of, or a disturbance in the functioning of, the mind or brain.

The MCA does not apply to children (as defined), save for a limited ability to make decisions in regards to a child’s property and financial affairs, if it is likely that they will still lack such capacity at the age of 18.

Making decisions on behalf of a young person

The Mental Capacity Act does apply to young people aged 16 or 17 who lack the capacity to make a particular decision for themselves. There are three exceptions to this:

• Only people aged 18 and over can make a Lasting Power of Attorney
• Only people aged 18 and over can make an advance decision to refuse medical treatment
• Only people aged 18 and over may make a statutory will for a person aged over 18.

Before making a decision on behalf of a young person who lacks capacity, the best interests checklist must be considered. This checklist includes factors such as:

• Finding out the person’s past and present views, wishes, feelings, beliefs, cultural values or any other relevant factors that the person may have considered themselves.
• Encouraging and enabling the person to engage in the decision-making process as much as possible.
• Avoiding discrimination and assumptions on the basis of age, appearance, condition or behaviour.
• Assessing whether the person may regain capacity, and if so, whether the decision could be postponed.

As an alternative to using the MCA, professionals may seek consent for some decisions from those with parental responsibility (‘PR’) for the young person, but only if it is the type of decision that is covered by PR rights. Those with PR must still give or refuse their consent based upon what is in the young person’s best interests. Should there be a dispute between the professional and those with parental responsibility, the court may be required to decide on the best course of action for the young person.

Liberty Protection Safeguards and young people

Significantly, the draft code permits LPS authorisations for 16- and 17-year-olds, in stark comparison to the previous DoLS regime, which only applied to people aged 18 and over. Furthermore, the draft code widens the scope of LPS authorisations, which, under the new proposals, may be granted wherever arrangements for care or treatment amount to a deprivation of liberty, including in children’s homes, youth clubs, inpatient mental health clinics and education settings.

Although the Mental Capacity Act only applies to those aged 16 and above, it may sometimes be the case that, because of the existing care regime, the child will clearly be deprived of their liberty once they have turned 16. In such instances, the draft code suggests that future planning should begin when the child is 14 years of age.

Often young people subject to an LPS authorisation will also have an Education Health, Care and Support Plan, or an Individual Development Plan in place. The local authority will, in such cases, be the responsible body for LPS purposes, unless the arrangements are taking place in an NHS hospital, in which case the relevant NHS Trust would assume the position.

Consideration must also be given to the effects of an LPS authorisation on a young person. The draft code, therefore, suggests that arrangements should be authorised for shorter periods, and with more frequent reviews, than for adults.