There are two Codes of Practice to the Mental Capacity Act 2005, one for the main body of the Act, and one for the Deprivation of Liberty Safeguards. They are statutory Codes: they have been approved by Parliament, and the MCA 2005 requires certain people to have regard to them. Those people include anyone acting in a professional capacity. Neither Code of Practice has ever been updated since they were published, the main Code in 2007, and the DoLS Code in 2009. They are both out of date in significant ways. As part of the coming into force of the Mental Capacity (Amendment) Act 2019, we had anticipated that there would be a new Code published which would (in one place) update the main MCA Code and give guidance as to the operation of the Liberty Protection Safeguards. However, the LPS have been delayed and, whilst we anticipate that there will be a consultation on the draft Code in 2022 (hopefully relatively early in 2022), it appears likely that professionals will be stuck operating two out of date Codes for some time.
Whilst professionals have to have regard to the Codes, they can – and should – depart from them where they have been superseded by case-law which makes clear what the Act itself, the source of the law. With two colleagues from Chambers, I have therefore prepared this entirely unofficial guide to those parts of the two Codes which are most obviously out of date.