MCA Code / LPS implementation consultation – rapid reaction overview and walkthrough

Set out below is a rapid reaction overview of the MCA Code / LPS implementation consultation, the walkthrough being here.

On 17 March 2022 the DHSC published, on its own behalf, and that of MOJ and DfE, the long-awaited draft Code for consultation.   The consultation runs until 7 July 2022.  There is a detailed consultation document, together with two easy read summary booklets, one focusing on the wider MCA guidance, and one on the LPS guidance, both available on the consultation page here.

At the same time, there is also a consultation on 6 sets of draft regulations which will underpin the new system. When enacted, 4 of these sets of regulations would apply in England only. The remaining 2 sets of regulations would apply to both England and Wales.  Separately, the Welsh Government has published 4 sets of regulations which would apply in Wales.  The DHSC is also publishing a number of documents to help the sector prepare for implementation. These products are not subject to formal consultation, but we welcome feedback as part of the consultation process. These are:

• impact assessment – this constitutes the government’s assessment of the financial impact of LPS, including the Code and regulations, as proposed for consultation
• LPS workforce and training strategy – this covers:
  • workforce planning
  • the learning, development and training on offer
  • what different organisations and sectors can do now to begin preparing for LPS
• LPS training framework – which makes recommendations about subject areas that LPS training should cover
• LPS National Minimum Data Set – which will be used to standardise the collection and submission of notification data that is sent to the monitoring bodies and NHS Digital
• Equalities impact assessment – which assesses the potential equality impact of the design of LPS overall, including the Mental Capacity (Amendment) Act 2019, the LPS regulations and the Code

Welsh Government is also conducting its own consultation on specific aspects in Wales (which includes an interesting additional set of criteria for people to be eligible to carry out the assessments and determinations for LPS purposes).

Many people will no doubt be writing many things in the coming weeks, but the purpose of this rapid reaction overview to highlight what seem to be to be particularly important things to know about the draft Code to help in how you respond.   For more on the LPS, see my resources page here.

The status of the Code

As before, it will be a statutory Code, i.e. laid before and approved by Parliament.   Whilst it cannot create the law, the Code provides important amplification about how the MCA applies in practice.   The MCA, in turn, sets out in (s.42) the categories of people who have to have regard to it when they are acting in relation to a person who lacks (or may lack) capacity, and – importantly – that any court (not just the Court of Protection) must take both the provisions of the Code and any failure to comply with it if relevant to a question before it.

A combined Code

First and foremost, this is a combined Code.  Unlike the previous position where there was a separate Code for the ‘main’ MCA 2005, and an entirely separate Code for the Deprivation of Liberty Safeguards, this Code integrates the sections relating to the Liberty Protection Safeguards and the sections relating to the main MCA into one document.   This obviously brings with it complexities – above all of navigation around what is now inevitably a lengthy document (although it should be remembered that the previous Codes, together, ran to 426 pages).   However, it gives the important message that the Liberty Protection Safeguards are founded upon the MCA, and require a proper understanding of the concepts of capacity and best interests by those applying them.   (At this point, I can hear some asking how the LPS can require a proper understanding of best interests if they do not make ‘best interests’ a part of the criteria for the grant of an authorisation: this is because best interests comes in at the earlier stage of the decision-making, i.e. choosing between the options available to the person.  By the time thought is being given to whether one of the options will give rise to confinement, the laser-like focus should be upon whether it can be said to be truly necessary and proportionate to the risk of harm that the person would suffer otherwise).

The first 11 chapters of the Code will look broadly familiar in chapter headings terms to those familiar with the original 2007 Code.  They provide an overview of the Act, before moving in stages through the principles, the concepts of capacity, best interests, the defence in s.5, the role of the Court of Protection, LPAs, IMCAs and advance decisions to refuse treatment.   The LPS chapters then follow before chapters 21-26 then pick up the themes from the original Code of how the Act applies to children and young people, the relationship between the MHA and the MCA, the protection of people lacking capacity to make decisions for themselves, disagreement/dispute resolution, information access and research.

The core MCA chapters

DO NOT BE FOOLED by the similarity in chapter titles where these relate to the core MCA provisions: the content has been significantly revised in many places, to take account – broadly – of two matters:

• The fact that the original MCA Code was drafted prior to the Act coming into force so represented in many ways the ‘best guess’ as to what situations were most likely to arise in practice;
• That we now have a significant body of case-law both applying and, more importantly, interpreting the MCA, which has made clear that the original Code was wrong in a number of ways (as to this, see this guidance note).

Key changes to the core chapters include the following (over and above the weaving in of express LPS cross-references where relevant):

• The alignment of what the Code says (in paragraph 3) about what it means to lack capacity with what the Act says. The previous version talked about two-stage test, starting with what is often (but wrongly) called a ‘diagnostic’ test.   The courts have, however, made clear this is incorrect because ss.2-3 require analysis of, first, whether the person is able to make their own decision (i.e. to understand, retain, use and weigh their relevant information and to communicate their decision).[1]  It is only if the person cannot do so that you move on to considering whether they have an impairment or disturbance in the functioning of their mind or brain, and, if so – and importantly – whether their inability to make the decision is because of that impairment or disturbance.  This last point is of particular importance given that, since the original MCA Code was drafted, the courts have made clear that the High Court’s inherent jurisdiction has survived (in rather ill-defined form) to secure the interests of those who have capacity to make a decision but are under coercion.
• More ‘granularity’ in how to think about capacity assessment. Although the Code is not a substitute for professional guidance documents, which translate the specific requirements of the Act into approaches directly relevant to the particular discipline(s) in question, the Code does tackle head-on in more detail some of the problems that have been identified in practice, such as fluctuating capacity and so-called ‘executive dysfunction;’
• Clearer guidance about the role of wishes and feelings, beliefs and values in the making of best interests decisions in light of the extensive body of case-law determined under the MCA. The guidance also reflects the considerable evolution of the approach to making decisions about life-sustaining treatment since the Act came into force;
• Clearer guidance about how s.5 MCA 2005 operates in a context where the MCA on the one hand expressly does not provide for surrogate decision-makers where no deputy or attorney (or Court of Protection judge) is involved, but on the other has to be applied, in most contexts, by a person or body. The Code also makes clear the categories of care and treatment which involve more serious interventions, and the more rigorous steps required before the person or body can properly say that they are able to rely upon the defence;
• The Code also reflects the development of the case-law to outline the circumstances when it is possible to proceed to give (or where relevant) withhold medical treatment without going to court. The Code also provides more detail about when and how the Court either must or should be involved in medical treatment cases, welfare cases and situations involving a person’s property and affairs;
• In relation to deputies, the Code picks up, in particular, the decision in Lawson & Mottram relating to the appointment of health and welfare deputies, making clear that, whilst there is no presumption against appointing a deputy, the operation of s.5 MCA 2005 means that, in practice, fewer health and welfare deputies will be appointed than property and affairs deputies;
• The chapter on Advance Decisions to Refuse Treatment includes, most significantly, consideration of how subsequent doubts about whether the person had capacity to make the ADRT are to be resolved, which is to be read together with the chapter on capacity, which makes that the presumption of capacity is not retrospective, such that if proper reasons are identified to suggest that the person did not have capacity, it will be for them, or someone on their behalf, to show why those doubts are ill-founded;
• The chapter on children and young people reflects the fact that there is now a body of case-law explaining the interaction between the MCA and the concept of Gillick competence post-16, and also makes clearer that decision-makers need to be aware that, where a 16-17 year old lacks capacity to make a relevant decision, they may in many cases have a choice as to whether to proceed under s.5 MCA 2005 or by way of obtaining consent from a person with parental responsibility. They need, however, both to be aware that they are making a choice, and that the choice will have consequences for how they proceed, and what happens if there is a disagreement.  The chapter also addresses the increased – express – interaction between the MCA and other pieces of legislation relating to children arising both out of the fact that much of that legislation expressly now refers to the MCA 2005 (e.g. the Children and Families Act 2014) and because of the operation of the LPS from age 16;
• The ‘interface’ chapter reflects the fact that underlying policy interface between the MCA and the MHA relating both to treatment and detention is unchanged as a result of the MCA(A) 2019, albeit reframed in perhaps more comprehensible language.  It also makes clear that there will be many situations in the community in which s.17(3) MHA 1983 will provide sufficient authority to deprive the person of their liberty, such that it is not necessary to have parallel authorisations.

Many may feel that the scenarios in the Code could do with work – if that is your response, then the obligation upon you is to provide sufficiently gritty scenarios for the civil servants to work up into case studies.

The CRPD

One thing that readers might expect to see express reference to is the Convention on the Rights of Persons with Disabilities.   The introduction makes clear that the MCA and the Code “are important parts of the UK’s commitment to the United Nations Convention on the Rights of Persons with Disabilities regarding promoting and protecting the rights and freedoms of people who may lack capacity to make decisions.”  However, the Code does not then make express reference to the CRPD throughout.   This is because the CRPD is not binding upon public authorities and courts in the same way as (for instance) the European Convention on Human Rights (which is expressly referred to in a number of places).  However, the effect of Article 12 CRPD – the right to legal capacity – can be felt in the significantly greater emphasis throughout the Code on (1) supporting individuals to make their own decisions at the time; (2) supporting individuals to make their own decisions in advance of potential incapacity; and (3) ensuring proper consideration of the person’s wishes, feelings, beliefs and values in best interests decision-making.

The LPS chapters

Chapter 12 is likely to be one of the chapters most closely scrutinised.  It contains the Government’s (non-statutory) definition of deprivation of liberty promised during the passage of the MCA(A) 2019.   It contains a number of strong statements, including:

• The Government’s interpretation of the ‘acid test’ set down by Lady Hale in Cheshire West;
• The Government’s view of the essentially unlimited potential for a person to give advance consent so as to prevent a confinement (including in a psychiatric hospital for purposes of assessment / treatment under the MHA 1983) being seen in law as a deprivation of liberty;
• A wide interpretation of the so-called Ferreira carve-out in relation to medical treatment for physical health problems.

The LPS chapters then move through an outline of the overall process, discussion of the responsible body, the appropriate person, the assessment conditions, consultation, the role of the Approved Mental Capacity Professional, the operation of the interim/emergency power in s.4B MCA 2005, and monitoring the reporting.

It is perhaps important to emphasise that the purpose of a Code is not to set out an operational protocol, but rather to outline how the Act is intended to work in practice.   In particular given the enormous range of situations within which the LPS can apply, and the different types of organisations which will be Responsible Bodies, the Code could not seek to prescribe how, operationally, obligations should be discharged.  Rather, it is to make clear expectations about the way in which tasks are to be done, for instance, the expectation that the process of authorisation will be complete within 21 days (para 13.26), and steps that can sensibly be expected to be seen to secure both appropriate levels of operational independence and appropriate levels of expertise amongst those undertaking different tasks.

The Code answers, at least in draft, the following key questions that are regularly asked about LPS:

• Who can carry out key tasks (in each case subject to further eligibility requirements set out in the relevant regulations), the draft Code identifies the following professionals as eligible to carry out the following functions:

1. 1. Capacity/necessity and proportionality assessment/determination: (1) medical practitioner; (2) nurse; (3) occupational therapist; (4) social worker; (5) psychologist; (6) speech and language therapist.
   2. Medical assessment: registered medical practitioner or registered psychologist.
   3. Approved Mental Capacity Professional: (1) nurse; (2) social worker; (3) psychologist; (4) speech and language therapist; (5) occupational therapist.

One question that will no doubt feature heavily in the minds of some during consultation is whether, if these are cemented into law in the final version of the regulations, it will be possible to secure the policy goal of thinking about LPS at the same time as thinking about care planning – to avoid duplication, and to avoid the DOLS problem of decisions being made and then checked afterwards, when it is all too late.  Many local authorities, for instance, do not use qualified social workers to undertake care and support planning work under the Care Act, so would not be able to use materials gathered during this directly for LPS purposes.  One question that some may want to think about is whether it would be appropriate to distinguish between ‘assessment’ and ‘determination’ and require that at least one part of these two tasks is carried out by a qualified social worker.

• Who can be an Appropriate Person. The draft Code makes clear that, although the Act is silent about who can be an Appropriate Person, the DHSC expects that it to be an unpaid role. There will therefore be no role for the equivalent of paid RPRs under DOLS. Where there is no person who can be an unpaid Appropriate Person, a (paid) IMCA will be required throughout so long as it is in the person’s best interests (it is difficult to imagine circumstances when it will not).
• How many people need to be involved. The draft Code makes clear that the DHSC expects that there should be at least two professionals involved in carrying out the three assessments and determinations required, with a degree of independence from each other.  The draft Code provides a set of principles for Responsible Bodies to consider in setting up their arrangements to facilitate this independence.
• How long the process should take. There is no statutory time-frame for completion of the process of assessment, unlike under DOLS.  However, the draft Code makes clear that the DHSC expects that the LPS process should be completed within 21 calendar days of receipt of referral.  It is likely that CQC / Ofsted will use this as a marker against which to stress-test the performance of Responsible Bodies.
• Whether legal aid is available. The draft Code makes clear that non-means-tested legal aid will be available where the person is subject to an LPS authorisation, for the person themselves, for their Appropriate Person.  Importantly, it also makes clear that non-means-tested legal aid will be available “in relation to s.4B of the Act,” which means that it is possible for the person / their Appropriate Person to challenge the situation where an LPS authorisation has been applied for but not yet granted.

For more on the LPS, see my resources page.

[1] Although note that the draft Code does not refer to the decision of the Supreme Court in JB, which put this beyond doubt.  This will undoubtedly be rectified in the final version.