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Draft MCA Code of Practice - chapters

Chapter 2 – statutory principles 

  • 2.14 to 2.16 – unwise decision making is given more in-depth attention with new case scenarios (predominantly regarding financial management) and it aims to draw out the concept of irrational or out of character decision making. The scenarios emphasise the importance of looking at a person’s pre-accident/injury preferences and beliefs. It would have been interesting to see a scenario on ‘unwise’ health and social care decisions, which so often challenge public bodies and relatives alike. 

Chapter 3 – how should people be helped to make decisions?

  • 3.6 – this largely reflects the original wording but with some notable updates. The updated draft code still recognises that it may not be practicable and appropriate to delay a decision whilst trying to help the patient make decisions, or to consult with known attorneys or deputies however staff should still try and find out ‘what they can about the person’s wishes and feelings (by asking other people if necessary)’ and should keep the person informed.

  • 3.15 to 3.19 – there is more detailed guidance on ensuring there is someone appropriate there to support the person, recognising the responsibilities of maintaining confidentiality and adhering to the GDPR and Data Protection Act 2018. The case scenario of Ms T (page 35) explores the concept of undue influence and practitioners would be advised to consider whether alternative legal frameworks might be applicable in that context (which is dealt with later in the draft code).

  • 3.21 to 3.30 – new paragraphs on how the person should be involved in the LPS process ie through an IMCA or Appropriate Person. Interestingly, it says that in most cases where the person does not want an Appropriate Person appointed irrespective of whether they have relevant capacity this will normally (not always) mean the individual should not be appointed and an IMCA should be considered. 

Chapter 4 - mental capacity 

  • The draft code has been amended to reflect the clear distinction between considering and assessing capacity.
  • 4.5 – this identifies situations where it might be necessary to consider (not necessarily assess) whether the person has capacity to make a specific decision ie decision is significantly out of character, appears to be unwise, a deprivation of liberty is necessary for the person’s care or treatment etc.
  • 4.12 - crucially, the test for assessing capacity has been re-ordered to prevent automatic assumptions that a person cannot make a decision because of their condition. The test is:
    a) is the person able to make the decision (with support if required)?
    b) if they cannot, is there an impairment or disturbance in the functioning of the mind or brain (Note 4.47 – it’s not necessary for it to fit into recognised clinical diagnosis eg in the psychiatric manual) 
    c) is the person’s inability to make the decision because of the impairment/disturbance?
  • 4.19 – the draft code makes it clear that whilst the burden of proof of lack of capacity in court is the ‘balance of probabilities’ this is not strictly necessary to other areas where the Act requires people to consider capacity, which is that they have a ‘reasonable belief that the person lacks capacity’.
  • There is an interesting and thought-provoking case scenario involving Mr R on page 53. He has early onset dementia and makes a valid LPA effectively within an hour whilst he has capacity to do so. 
  • 4.38 – deals with executive functioning and the need to evidence a repeated mismatch between what the person says and what the person does. This is drawn out with the case scenario of Ms L who has issues around impulsive eating. 
  • 4.51 – 4.57 – deals with fluctuating capacity. Is it an isolated decision or are repeated decisions necessary? The draft code could have been more detailed in terms of the different categories of fluctuating capacity and the micro versus macro decision-making issue 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. 
  • 4.60 – useful guidance on when capacity should be reviewed eg whenever a care plan is developed or reviewed, at other ‘relevant stages’ and as particular new decisions need to be made. 
  • 4.83 – we are heading back to normality after the COVID-19 restrictions and the code states that assessments should now be in person although they may appropriately be done remotely if it is not possible to visit the person. This is and will be tested in the courts. 
  • 4.87 – every effort should be made to get permission from the person to share information with others for the purposes of capacity assessment.
  • 4.88 – this usefully sets out what to do if an assessment is not possible or the person refuses to engage. It stresses that nobody can be forced to undergo an assessment, but it might need an application to the Court of Protection (presumably based on the evidence you are able to get). There is also reference to whether the requirements of the Mental Health Act 1983 might be met but a refusal to be assessed on its own is in no way sufficient to meet the test. It goes on to say that if the person is being coerced by a family member then you should consider an application to the High Court under its inherent jurisdiction. 
  • 4.101 – this provides some useful guidance on retrospective assessments.

Chapter 5 – best interests 

  • 5.10 – The ‘holistic’ approach to best interests as set out in the Aintree decision has now been codified. 
  • 5.16 –confirmation that a next of kin has no legal right to make any decision on behalf of a person who lacks capacity. 
  • 5.21 – there is recognition of the frequently adopted MDT approach to decision making and therefore it recognises that the decision maker may be different to the person implementing the care plan. It’s still important that one person is identified as having the responsibility for the coordination of the process. 
  • 5.24 and 5.25 – you must start with identifying the available options as per N -v- ACCG [2017] UKSC 225.25. The draft code recognises that further options may become clear during the process. The example given in 5.25 is likely to provoke some discussion, as this refers to the option of remaining ‘home’ becoming available after it is clear the person will tolerate a higher degree of risk than professionals previously considered acceptable. This does beg the question of what has changed, if anything, in the process to make the risk sufficiently ‘acceptable’.
  • 5.49 to 5.60 – here are the important parts about life sustaining treatment. It is for the doctor to decide whether life sustaining treatment in question is a treatment it would be reasonable to provide, an issue which has been explored very recently in the case of London North West University Healthcare NHS Trust -v- M & others [2022] EWCOP 13
  • 5.59 – The guidance in NHS Trust -v- Y [2018] UKSC 46 is set out in terms of when to apply to court. Mr Justice Hayden’s guidance of January 2020 interestingly is not referred to in the draft code but it is in the consultation document.
  • 5.102 – 108 – there is further guidance on recording best interests decisions and in what circumstances they should be more detailed. 
  • 5.112 – confirmation that the balance sheet should be used as an aid and not a substitute for decision making. 
  • 5.118 – this highlights those situations when it might be appropriate to appoint another type of advocate if the person does not qualify for IMCA eg family members disagree, family members and professionals disagree, conflict of interest etc 

Chapter 6 – what protection does the Act offer?

  • 6.17/6.18 – this recognises that there are occasions where there is no alternative but to move or transfer a person to another residence/place. These paragraphs allude 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. There is perhaps a missed opportunity here to offer some practical case scenarios. 
  • 6.18 – an application to court should be made before a move as to where someone should live save for in exceptional circumstances. Again, a case example would have been useful to address the issue of hospital discharge delays, although there is government guidance on this issue (Hospital discharge and community support guidance, published 31 March 2022) and a bill is being presented to Parliament to make provision for the expedition of the transfer of patients from acute hospitals to home settings.
  • 6.72 – restraint must be necessary to prevent harm to the person who lacks capacity.
  • 6.80 – a proportionate response means using the least intrusive type and minimum amount of restraint to achieve a specific outcome in the best interests of the person who lacks capacity. 

Chapter 7 – what is the role of the Court of Protection 

  • 7.21 – confirmation that if there are options for medical treatment which are not available because they are clinically inappropriate and the clinicians need legal confirmation of this they should seek this from the High Court by way of an application under Part 8 of the CPR and not in the Court of Protection (as it is not an available option).
  • 7.32 – this tackles the incredibly important issue of delay (or avoiding delay) in applying to court. This states that 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. What is reasonable is very much open to interpretation and fact dependent and legal advice should be obtained at an early stage. 
  • 7.38 – this refers to s4B of the MCA and our first thoughts on the LPS part of the code refers to this in more detail. 
  • 7.39/40 – some clarity is given about the role of the Court of Protection to authorise a DOL once the LPS comes in. It refers to it being necessary in ‘rare circumstances’ ie as an ancillary/stand-alone order to a medical treatment decision and then the court should ask the Responsible Body to consider the DOL. 
  • 7.44 – there is some guidance on who should bring an application although it doesn’t quite tackle those cases where there is joint funding/responsibility (between local authorities, NHS Trusts and CCGs), presumably because the emphasis is always on there being locally agreed protocols in those situations.
  • 7.59 – a reminder that the Court of Protection has the power to make costs orders against parties for conduct before or during proceedings which has led to unnecessary or unnecessarily extended or expensive proceedings. 

Chapter 11 – advance decisions 

  • 11.46 – an Advance Decision to Refuse Treatment (ADRT) for a mental disorder can usually be overruled if the person is detained under the MHA and treatment can be given under Part 4. However, where practicable, you should try and comply with the patient’s wishes and the ADRT for other illnesses is not affected by detention under MHA.

There are of course updates to other chapters on Lasting Powers of Attorney and Deputies etc which are not covered above.