Mental Capacity Act code of practice under review but progress slow due to lack of civil servants

The Mental Capacity Act 2005 (MCA) code of practice is under review but progress is being checked by a lack of civil service capacity, a minister has confirmed.

Campaigners have long been calling for a review of the code, which sets out how social workers and other practitioners should implement the MCA, in order to take account of case law and provide more detailed practice guidance.

No formal review has been announced by the government. However, 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 that there was a lack of capacity to make quick progress.

“In a department [the Ministry of Justice] that has taken 25% cuts since 2010 and has lost in total some 20,000 staff, action this day is not the easiest thing for civil servants who are working under extreme pressure on a wide number of fronts,” he said.

McNally said MoJ 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, the consultation on which have just closed, 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.

Review of MCA code underway

On the review of the MCA code, McNally said work was underway but he could not give a date for its completion, though he suggested that the House of Lords inquiry may bring it forward.

Also giving evidence, care and support minister Norman Lamb said the separate Deprivation of Liberty Safeguards (Dols) code of practice 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.

Lamb also said that the Department of Health had not ruled out extending the Dols to supported living arrangements. The system, under which councils must authorise and monitor deprivations of liberty in care of people who lack capacity to make decisions about their support or accommodation, currently applies only to care homes, hospitals and hospices.

While Lamb said there were no immediate plans to extend it to supported living, he added: “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.”

Lamb also said that a steering group had been set up by the DH to examine the effectiveness of the implementation of the MCA.

“I think that there is a recognition that there is still a long way to go in embedding this legislation in the lives of the people whom it is supposed to protect and to whom it is supposed to give rights.”

Improve your Mental Capacity Act and Dols practice

For the latest MCA and Dols case law and practice advice and to network with your peers, register for a place at Community Care’s conference on the topic, in London on 19 March 2014.