Reflecting on a talk I gave this morning arranged by the indefatigable Walter Lloyd-Smith, the Board Manager of the Norfolk Adults Safeguarding Board, it seems to me that it may be worth flagging the approach taken in Northern Ireland. for those who have yet to submit their consultation response to the LPS consultation (nb, you now have until 14 July), The NI Mental Capacity Act provisions relating to deprivation of liberty have a statutory Code, and a non-statutory set of scenarios providing examples of how their Act works in practice.
For my part, it seems to me that there are three points in favour of such an approach:
(1) It is possible to provide more detail than can sensibly fit within a ‘box’ type scenario designed to fit in a Code, and scenarios can therefore be tailored to fit more obviously to the sorts of situations which actually resonate with practice (an example of such tailoring could also be found in the Law Society’s guidance about deprivation of liberty, which has scenarios for multiple different settings);
(2) The scenarios can potentially deal with difficult situations more easily – because there is space for more nuance – than can be done in a ‘box’ scenario. This means, for instance, it may be possible to have scenarios which do not have a ‘good’ outcome. This could be in the context of deprivation of liberty (e.g. the person is profoundly opposed to the arrangements which confine them, but after all the safeguards – including potentially a s.21zA application to the Court of Protection – have been implemented, the deprivation of liberty is legitimately said to be necessary and proportionate). It could also be in the context of decisions taken under cover of the main provisions of the MCA 2005, for instance that it is considered after proper consideration not to be in the person’s best interests to impose a treatment upon them which might secure their interests clinically but not square with their wider interests;
(3) It is possible for the scenarios to be changed rather more easily than can be the case in relation to a statutory Code. This is particularly important, you might think, in relation to deprivation of liberty, given that there is no statutory definition contained within the Act, such that it remains governed by case-law. A consequence of this is that where steps are not taken to seek authorisation (or authorisation is not granted) based upon a scenario contained in the Code which is narrower than the case-law provides, the person will be subject (by definition) to an unlawful deprivation of liberty which may, in turn, ground a right to damages. If case-law evolves, scenarios can then evolve to reflect them more speedily than would be the case even given the (welcome) requirement within the MCA as it will be amended for the Government to keep the provisions relating to the LPS under review).
A point against this approach, which I recognise, is that scenarios within the Code itself can help bring it to life. This however, might be thought to raise a question (which I’ve tried to cover here) about what the point of a Code actually is (and whether that point might differ for different aspects of what it covers).