DoLS aren’t the only part of the mental capacity world that is changing
Featured article -
13 February 2020
By Sam Cox, Knowledge Officer (Legal and Welfare Rights) at Alzheimer's Society
Most of the Mental Capacity Act (MCA) related e-bulletins and newsletters that I have received lately focus on the major overhaul to The Deprivation of Liberty Safeguards (DoLS) - and the new Liberty Protection Safeguards (LPS). This is due to be implemented later this year. This is great as it ensures that we are all prepared for when the changes come into effect. However, we know DoLS, and LPS when it’s in force, are part of the MCA, the principles of which must be applied in all cases. Many of us know from practice that where the MCA is applied correctly, DoLS can even be avoided in some cases. Therefore, the MCA is a crucial obligatory foundation to DoLS / LPS but also to health, social care and beyond, so I am wishing to raise awareness of the other work that is happening alongside the LPS work. This is the review of the existing MCA Code of Practice.
Hopefully, you would have seen the call for evidence issued by the Ministry of Justice last year asking for people’s opinions on the code. I have had the honour of sitting on the working group that has been leading on the review. The group consists of members from a variety of backgrounds, including law, health, social care, the third sector, academics as well as government, all experts in the MCA and personally I have learnt a lot from.
I have seen first-hand that the review is no easy task; the group have literally looked through the code line-by-line and scrutinised the smallest of details; and often had constructive debate amongst members. The code is not the shortest of documents, so as you can imagine it has taken a while to get through the code in this level of detail. I can also assure people that as we have gone through each chapter, section, and line we have looked through the information people submitted through the call for evidence.
Helpful, accurate and up-to-date
Information from the call for evidence has been a key to the review. The code was written before the MCA came into force, and so was looking ahead at how it was thought the new law would work in practice. This review provides an opportunity to make changes to reflect how the law does and should work on a day-to-day basis, and so the call for evidence has helped with that.
The review cannot change the MCA itself. Many times as a group we have had to look back at the MCA and ensure that the code continues to reflect the law. But the review does enable us to ensure that the code is helpful, accurate and up-to-date with case law and best practice. I know that the Ministry of Justice have been looking for real life scenarios to include in the Code, as many of the current ones are out of date and all were written before the MCA came into force.
The working group have just had our last meeting and all the many months of work and recommendations are being looked over by the Ministry of Justice. They are now pulling together the final draft. Don’t panic though – this won’t suddenly land in your inbox; there will be a consultation on the MCA Code update alongside the new LPS guidance. I urge you to submit your thoughts. As we know the MCA is a fundamental backbone to health and social care; and to wider society as it effects so much more, from banking, to shopping and to someone’s everyday activities (really the list is endless). Therefore, we all need to ensure that the code, which is statutory guidance for how the law should work in practice, is right and fit for purpose, so look out for the consultation that will be out soon - and do please respond.