Revised MCA code of practice ‘still under discussion’ two years after consultation on changes

Care minister declines to commit to publishing update to 17-year-old code before next election, saying government is still discussing potential changes, despite consultation on revisions ending in July 2022

Care minister Helen Whately
Care minister Helen Whately (photo: Lauren Hurley/ DHSC)

Revisions to the Mental Capacity Act 2005 code of practice are still under discussion two years after proposed changes were consulted upon.

That was the message from care minister Helen Whately in response to a parliamentary question from shadow justice minister Alex Cunningham earlier this month.

Cunningham had asked if a revised code would be published before the election, due by January 2025 but expected to take place in the autumn of this year.

Whately sidestepped the question. Instead, she said that the Department of Health and Social Care (DHSC) was “continuing to discuss revisions to the Mental Capacity Act Code of Practice, consulted on in 2022, with the Ministry of Justice [MoJ]”.

“Further details on next steps will be shared with the sector in due course,” she added.

What is the MCA code and why was it being revised?

The MCA code provides guidance on how social workers, NHS professionals, advocates, other relevant care staff, Court of Protection-appointed deputies and people holding power of attorney should apply the act in practice.

These groups have a legal duty to follow the code as it has statutory force, under section 42 of the MCA.

The code has not been revised since its publication in 2007.

The proposed update in 2022 was the culmination of three years’ work, with the MoJ having issued a call for evidence on potential revisions in 2019.

‘Time is right to update code’ – minister in 2022

In an introduction to the consultation paper on revising the code, then justice minister Tom Pursglove said that “a lot has moved on since then”, including “other legislation, case law, terminology, organisational structures, and good practice”.

For example, the code, drawing on section 2 of the MCA, sets out a two-stage test of capacity, under which assessors first ask whether the person has an impairment of the mind or brain (‘the diagnostic test’) and then whether this means they cannot make the decision in question at the relevant time (‘the functional test’).

However, since then, case law (A Local Authority v JB [2021] UKSC 52) has established that assessors should carry out the functional test before the diagnostic test, asking whether the person is unable to make the decision, and then, whether this is so because of a mental impairment.

Pursglove added: “The time is therefore right to update the code to reflect these changes…”

Shelving of LPS

The proposed revised code also incorporated guidance on the Liberty Protection Safeguards (LPS), the government’s planned replacement for the Deprivation of Liberty Safeguards (DoLS).

However, in April 2023, ministers shelved the introduction of the LPS until after the next election, leaving DoLS – and its separate code of practice, published in 2009 but never revised – in place.

At the time, the DHSC said it was working with the MoJ on working out next steps on revising the MCA code and would provide an update as soon as possible, a line that Whately has now repeated 13 months later.

Where Labour stands

It is unclear where the Labour Party – which is widely tipped to win the next election – stands on the introduction of the LPS and the revision of the MCA code.

It has been more forthcoming on two other key sector policies that have been shelved until, at least, after the election.

  1. Mental Health Act reform: this would reform the 1983 act to lower the thresholds for detention in hospital and community treatment orders and exclude autistic people and people with learning disabilities from being detained for treatment without a co-existing mental health condition. However, despite publishing draft legislation in 2022, the government has not come forward with a full bill to enact the changesLabour has said it will take forward the reform, if elected.
  2. Adult social care charging reform: this would put an £86,000 cap on how people’s lifetime expenditure on their personal care and raise the asset threshold above which people are ineligible for state-funded care, from £23,250 to £100,000. Originally due for implementation in October 2023, the government announced a two-year delay in 2022. Since then, the government has not announced any steps towards implementation in 2025. Labour has said it remains committed to it but has not set out how it would pay for it.

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