Review of Mental Capacity Act Code of Practice

Topics covered: Ridouts professional advice

The Mental Capacity Act 2005 Code of Practice which sets out how practitioners should implement the MCA is currently being reviewed. The government has not announced a formal review but in evidence to the House of Lords committee examining the implementation of the MCA, justice minister Lord McNally said civil servants had started reviewing the code but the Ministry of Justice did not have the capacity to make quick progress at this time. He said the Ministry of Justice “…has taken 25% cuts since 2010 and has lost in total some 20,000 staff” and therefore “…action this day is not the easiest thing for civil servants who are working under extreme pressure on a wide number of fronts.” McNally said work on the review was underway but he could not give a date for its completion.

McNally said that Ministry of Justice officials were giving priority to a parallel reform of the Office of the Public Guardian (OPG), which is responsible for registering and monitoring attorneys and deputies who take decisions on behalf of people who lack the capacity to do so. These reforms cover reducing bureaucracy for people applying for lasting powers of attorney, providing more services online and reforming the OPG’s supervision of deputies to deal with a large increase in caseloads.

The care and support minister, said the DoLS may also be reviewed in the light of a forthcoming Supreme Court judgement. In October, the court heard two cases – P&Q v Surrey County Council and P v Cheshire West and Chester Council – that hinge on what constitutes a deprivation of liberty and its judgement is expected to be far-reaching.

The care and support minister also said that the Department of Health had not ruled out extending the DoLS to supported living arrangements. While Lamb said there were no immediate plans to extend it to supported living he said, “I am conscious that we are aiming, particularly with learning disabilities, to effect a significant shift towards supported living in the community. There has already been a dramatic shift in that direction, but we want it to go further. As numbers increase further, should we look again? That is a question on which we should be prepared to keep an open mind.”


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