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 They are both out of date in significant ways. A draft Code (consolidating both parts) was consulted on in 2022, but was not taken forward.
The Government announced in October 2025 that there would be a consultation on the Liberty Protection Safeguards, and that consultation responses would inform a final Code. It is unclear: (1) what the scope of that Code will be, and (2) what the timeline is for the Code.
Whilst professionals have to have regard to the Codes, they can – and should – depart from them where they have been superseded by case-law which makes clear what the Act itself, the source of the law, means.
Members of the 39 Essex Chambers Mental Capacity Report team have therefore updated their entirely unofficial guide to those parts of the two Codes which are most obviously out of date.
