By Tim Spencer-Lane, legal editor, CC Inform
The draft Mental Capacity Act Code of Practice was published for public consultation on 17 March. It has been updated to reflect new legislation and case law, and other developments, for example in ways of working and good practice, since the Mental Capacity Act 2005 (MCA) came into force in 2007. The code has also been updated to include the new Liberty Protection Safeguards (LPS) scheme. This is a summary of the main changes to the code not directly related to the LPS. A summary of the changes in respect of the LPS can be found here.
Consultation ends on 4 July.
The assumption of capacity
The draft code includes new text covering the assumption of capacity. In several places, for example, it emphasises that assuming capacity should not be used as a reason for not assessing capacity. If there is a “proper reason” to doubt that the person lacks capacity, an assessment is necessary (eg 2.6 and 2.16).
It also distinguishes between considering and assessing capacity. Considering a person’s capacity means asking whether there is a proper reason to doubt that the person has the capacity to make the decision in question. This may be necessary if the person is proposing to take a decision that is unwise or significantly out of character. Failure to consider this can be just as harmful for the person as an overly hasty decision that they lack the relevant capacity (4.5-4.6).
The two-stage test of capacity
The current code incorrectly states that, when assessing capacity, the diagnostic test should be considered before the functional test. The draft code rectifies this by confirming that an assessor should firstly consider whether the person is able to make the decision, and if not, whether there is an impairment or disturbance in the functioning of the mind or brain causing their inability to make the decision (4.12 and 4.21). This reflects the Supreme Court decision in JB v A Local Authority  UKSC 52.
The draft code provides new guidance on executive capacity. This is where a person gives coherent answers to questions but is unable to give effect to their decision. The draft code confirms that if the person cannot understand (and/or use and weigh) the fact that there is a mismatch between what they say and what they do when required to act, it can be said that they lack capacity to make the decision in question. However, this conclusion can only properly be reached when there is clear evidence of repeated mismatch, and a single assessment is unlikely to be adequate (4.38).
The draft code also has new guidance on fluctuating capacity. It distinguishes between isolated and repeated decisions. For isolated decisions, the decision should be delayed until the person has the capacity to make it for themselves. If it’s not possible to delay, the minimum action necessary should be taken until the person regains decision-making capacity. In contrast, for repeated decisions, such as the day-to-day management of finances or management of a condition such as diabetes, it may be appropriate to consider the broader time over which the decisions need to be made. This is especially so if the consequences of the decisions are serious, and the person only has capacity to make them for a very small part of the time (4.51-4.56).
The draft code says that capacity assessments should take place with the person. But in some circumstances, remote assessments via video conference may be appropriate if it is not possible to visit the person or if doing so is a practicable step to support the person’s capacity (4.83-4.84).
It also discusses cases where there is doubt about whether a person had capacity to make a decision at a point of time in the past (for example, an advance decision). In such cases, it may be possible to support them to make the decision now. But it may be necessary to assess capacity retrospectively and often the courts will be involved, for example where someone’s capacity to create a lasting power of attorney is questioned and they no longer have capacity to grant a new power (4.101-4.105).
Exceptions to the best interests principle
The draft code confirms that the best interests principle does not apply to decisions made about assessing and meeting needs under legislation such as the Care Act 2014 and Social Services and Wellbeing (Wales) Act 2014. This is because each of those legislative frameworks provides their own, specific, ways in which to ensure that the interests of the person are taken into account (5.7-5.8).
Who is the best interests decision maker?
The draft code explains that, in general, the MCA does not identify any formal decision makers. The exceptions include an attorney acting under a lasting power or a deputy. The fact that someone is seen as the person’s next of kin does not mean that they have any legal right to make any decision on their behalf, and a professional does not have a right to make the decision on behalf of the person simply because they occupy a particular position.
In some cases, the person who is going to carry out the act should be thought of as the decision maker, for instance a GP taking a blood sample from a patient. Where the person carrying out the act is acting on the direction or under the supervision of another, or subject to a care plan, the person will themselves have to be satisfied that they are acting in the best interests of the individual. But the decision maker will be the person giving the direction/supervision or who is responsible for the care plan (5.15-5.27).
The draft code sets out that most best interests decisions will involve a choice, either between a person doing something and not doing something (for instance carrying out a medical procedure), or making a choice on behalf of the individual between two or more options (for instance where they might live). That choice can only be between options which are actually available to the person, and the process of best interests decision making therefore needs to start with identification of what options are available (5.24-5.25).
Wishes and feelings
The draft code has added emphasis on the importance of taking the person’s wishes and feelings into account. This includes clarifying that the greater the departure from what the decision maker considers the person would themselves have done, the clearer the justification the decision maker should be able to give (5.68). In light of the Supreme Court decision in Aintree v James  UKSC 67, the draft code makes clear that best interests encompass not just a person’s medical interests, but also their social, cultural and psychological interests (5.8).
Recording best interests decisions
The draft code includes new guidance on recording best interests decisions. It sets out that any staff member involved in the care of a person who lacks capacity should make sure a record is kept of the process of working out the best interests for each decision. More serious decisions will require more detailed records, particularly those that will represent a serious an interference with the person’s human rights, such as moving to long-term accommodation, restricting contact with others or administering covert medication (5.102-5.108 and 6.44-6.46).
The draft code sets out when the Court of Protection must or should be asked to make the relevant decision. The court must be asked to decide whether or not to consent to life-sustaining treatment if the decision is finely balanced, there is a difference of medical opinion or a lack of agreement from those interested in the person’s welfare. The court should be asked to decide in cases of serious interferences with the person’s human rights, such as sterilisation, covert contraception or the use of deception to deliver medical treatment (6.32-6.37 and 7.21-7.28).
An application to the court may be needed when decisions about where the person should live are being made, particularly if there is a disagreement between family members that cannot be resolved (6.18). Also, only the court can make a decision on a person’s behalf not to see someone, and a court application is likely to be necessary in any situation where there is doubt or disagreement about whether the restriction is in the person’s best interests (6.22).
The draft code also emphasises that it is the responsibility of public bodies to ensure that disputes about significant welfare issues in relation to those for whom they have caring responsibilities are brought to the court if they cannot be resolved by discussion (7.45).
The draft code rectifies an error in the current code that suggests that a do not attempt cardio-pulmonary resuscitation (DNACPR) notice is a best interests decision. The draft code says that, although a decision to put a DNACPR recommendation in the person’s records is not strictly a best interests decision, the same principles should apply (6.31).
Tim Spencer-Lane is a lawyer specialising in adult social care, mental capacity and mental health, and is legal editor of Community Care Inform.