Revising the Mental Capacity Act 2005 Code of Practice: Call for evidence

Overview

The Mental Capacity Act (MCA) 2005, covering England and Wales, is designed to protect and empower people who may currently lack the mental capacity to make their own decisions about their care and treatment; or who have capacity but wish to make preparations for a time when they may lack capacity in the future. It applies to people aged 16 and over. This legislation covers a wide range of decisions and circumstances, providing a flexible framework to ensure that individuals are placed at the very heart of the decision-making process; so that any decisions that are made are in the individuals best interest.

The Code of Practice (COP) is a key document supporting the MCA with practical guidance. The COP illustrates how the Act will operate on a day-to-day basis, alongside offering examples of best practice to both carers and practitioners, who have a formal duty to adhere to the code. It also serves as a fundamental piece of guidance to friends and family of the individual, to enable them to better understand the practical insight the Act offers to those who lack capacity.

Since the MCA came into force in 2007, the COP has been used extensively by a wide range of stakeholders. In light of changes in case law, and lessons learned through practical use of the COP over the past 11 years, revision of the COP is required in order to better reflect current needs. The Act itself is currently not under review, however the survey below provides an  opportunity to  comment on the practical guidance outlined in the COP. Comments received will inform decisions to revise, update and where relevant to provide further guidance in the COP.

Deprivation of Liberty Safeguards (DoLS) reform and how this is aligned to the MCA COP revision

The Law Commission 2017 report recommended that DoLS should be reformed, naming the new system the Liberty Protection Safeguards. The Liberty Protection Safeguards are based in care planning and provide a simpler and streamlined system. It will provide independent oversight of all authorisations and a strengthened role for and ensuring consultation with families and carers. Individuals who object to arrangements will have proposed arrangements reviewed by a new professional (Approved Mental Capacity Professionals, AMCPs) and ultimately the right to appeal to the Court of Protection. Putting the person at the heart of the system is one of our key aims for Liberty Protection Safeguards.

Unlike DoLS, the Liberty Protection Safeguards will extend to individuals who are 16+, so affording the necessary safeguards to this vulnerable age group of 16/17 year olds.

The Liberty Protection Safeguards will be supported by a brand-new Code of Practice. This statutory document, to which people must have regard, is essential in supporting implementation and will provide examples of best practice to both carers and practitioners. The new Liberty Protection Safeguards Code of Practice will complement and be an integral part of the revised part the MCA Code of Practice- as outlined above. 

To see progress of the Bill through parliament, visit the parliament website.

Mental Health Act Reform

Following publication of the final report from the Independent Review of the Mental Health Act 1983, the Government has announced  that it will introduce a new Mental Health Bill to transform mental health care. We will  ensure that any changes align with content in the revised COP.

We have committed to working with a range of stakeholders to develop the new Code of Practice and ensure it is  an effective and useful product. We intend  to start this work shortly.