Denzil Lush, Master of the Court of Protection
Although most of the Mental Capacity Act 2005 won’t come into force until 1 October 2007, sections 42 and 43, which relate to the preparation and publication of a code of practice, came into force on 1 April 2007.
Section 42 requires the Lord Chancellor to prepare and issue “one or more codes of practice” for the guidance of a range of people with different duties and functions under the Act. Despite the reference to more than one code, there will only be one. In the summary of responses to its consultation paper on the code, the Department for Constitutional Affairs said, at page 71, “We think it is important that all the relevant material should be in one place and that those who have a duty to have regard to the Code of Practice have one document with which to work rather than many.”
Section 43 of the Act requires the Lord Chancellor to consult various people before he prepares or revises a code of practice and, before it can be issued, it must have been laid before both Houses of Parliament for forty days without either House voting against it: known as the “negative resolution procedure”. The Department for Constitutional Affairs circulated a draft code for consultation on 9 March 2006. The consultation period ended on 2 June 2006, and a summary of the 161 responses received was published on 29 September 2006. The first edition of the Mental Capacity Act 2005 Code of Practice was issued on 23 April 2007.
Copies of the code can be obtained from TSO (The Stationery Office) for £15. Audio and large print versions will be available in English and Welsh, and there will also be a Braille edition.
The code will only be a success if people know about it, and one of the functions of the new Office of the Public Guardian will be to bring it to the attention of attorneys and court-appointed deputies. The Department of Health will put in place mechanisms for ensuring that health and social care professionals and paid carers are aware of it.
The purpose of the Code
The purpose of the Code is to provide practical guidance on how the provisions of the Mental Capacity Act should be applied in ordinary, everyday situations. For example, when:
o assessing whether someone has capacity in relation to a particular matter;
o deciding whether a particular course of action is in a person’s best interests;
o acting as a carer or a treatment provider, and in emergency situations;
o acting as an attorney under a lasting power of attorney or as a court-appointed deputy; or
o carrying out intrusive research on a patient who lacks the capacity to consent to such research.
The contents of the Code
The Mental Capacity Act 2005 Code of Practice is paperback, A4 size, 296 pages long, and contains sixteen chapters, most of which begin with a “quick summary”. Each chapter is also prefaced with the following reminder, which stands out like the health warning on a packet of cigarettes, emphasising the fact that capacity is both issue-specific and time-specific: “In this chapter, as throughout the Code, a person’s capacity (or lack of capacity) refers specifically to their capacity to make a particular decision at the time it needs to be made.” At the end there is a glossary of “key words and phrases used in the Code”, rather than an index, and an annex containing contact details for various organisations with an interest in this area.
Each chapter includes a number of “scenarios”. These are vignettes or case studies designed to illustrate the meaning of the legislation described in the main text of the code. However, the introduction to the code contains an unhelpful disclaimer that “the scenarios should not in any way be taken as templates for decisions that need to be made in similar situations.”
The chapters
The sixteen chapters are as follows:
Chapter 1 – What is the Mental Capacity Act 2005? This introduces the Act; describes what decisions are covered by it, and what decisions are excluded, and briefly summarises what the Act says about the Code of Practice itself.
Chapter 2 – What are the statutory principles and how should they be applied? This discusses the five principles set out in section 1 of the Act, and how they should be applied in practice.
Chapter 3 – How should people be helped to make their own decisions? This describes how the Act requires people to be given the right amount of help and support to make their own decisions. It considers providing relevant information, communicating in an appropriate way, and making the person feel at ease.
Chapter 4 – How does the Act define a person’s capacity to make a decision and how should capacity be assessed? This explains what is meant by ‘capacity’ and ‘lack of capacity’, provides guidance on how to assess whether someone has the capacity to make a decision, and suggests when professional people should be involved in making the assessment (para. 4.53).
Chapter 5 – What does the Act mean when it talks about “best interests”? This considers what acting in someone’s best interests means, and discusses the checklist set out in diction 4 of the Act.
Chapter 6 – What protection does the Act offer for people providing care or treatment? This chapter discusses section 5 of the Act, which allows carers, healthcare and social care staff to carry out certain tasks without fear of civil or criminal liability.
Chapter 7 – What does the Act say about Lasting Powers of Attorney? This chapter explains how people can plan ahead for the possibility that they might in future lack the capacity to make particular decisions for themselves by creating a lasting power of attorney (LPA) naming individuals who can make certain decisions on their behalf. It also describes how the attorneys appointed under an LPA should act.
Chapter 8 – What is the role of the Court of Protection and court-appointed deputies? This describes the role of the new Court of Protection to make a decision or appoint a decision-maker on someone’s behalf when there is no other way of resolving the matter.
Chapter 9 – What does the Act say about advance decisions to refuse treatment? This chapter explains the procedures that must be followed if someone wishes to make an advance decision to refuse medical treatment, which will come into effect when they lack the capacity to refuse the specified treatment.
Chapter 10 – What is the new Independent Mental Capacity Advocate service and how does it work? The contents are self-explanatory, though not everyone may be aware that The Mental Capacity Act 2005 (Independent Mental Capacity Advocate)(Expansion of Role) Regulations 2006 has given local authorities and NHS bodies new powers to instruct IMCAs in adult protection cases where there is suspected abuse or neglect.
Chapter 11 – How does the Act affect research projects involving a person who lacks capacity? This chapter gives guidance on what is meant by ‘research’; the requirements that must be met if a research project involves someone who lacks capacity; and the specific responsibilities of researchers.
Chapter 12 – How does the Act apply to children and young people? The Mental Capacity Act doesn’t generally apply to people under the age of 16, and this chapter looks at the rare exceptions to that rule.
Chapter 13 – What is the relationship between the Mental Capacity Act and the Mental Health Act 1983? This chapter sets out when it may be appropriate to detain someone under the MHA rather than to rely on the MCA; describes how the MCA affects people who are also subject to the MHA; and explains when doctors cannot give certain treatments for a mental disorder to a person who lacks the capacity to consent to it.
Chapter 14 – What means of protection exist for people who lack capacity to make decisions for themselves? This chapter describes the different agencies that exist to help make sure adults who lack capacity to make decisions are protected from abuse.
Chapter 15 – What are the best ways to settle disagreements and disputes about issues covered in the Act? This chapter sets out the different options available for settling disagreements, including advocacy, mediation, formal and informal ways of complaining about healthcare or social care, contacting the Ombudsman, and applying to the Court of Protection.
Chapter 16 – What rules govern access to information about a person who lacks capacity? This chapter gives guidance on what personal information family members and carers have a right to see about someone who lacks capacity, and how they can get hold of that information.
People who have a duty to have regard to the Code
Section 42(4) of the Mental Capacity Act 2005 provides that it is the duty of a person to have regard to the code if he is acting in relation to a person who lacks capacity and is doing so in one or more of the following ways:
o as the donee of a lasting power of attorney,
o as a deputy appointed by the court,
o as a person carrying out research in reliance on any provision made by or under the Act,
o as an independent mental capacity advocate,
o in a professional capacity (such as healthcare staff, social care staff, and others who may occasionally become involved, such as paramedics, housing officers, and police officers),
o for remuneration (such as care assistants in a care home, or care workers providing domiciliary services).
The introduction to the code says that, “have regard to” means that “they must be aware of the Code of Practice when acting or making decisions on behalf of someone who lacks capacity to make a decision for themselves, and they should be able to explain how they have had regard to the Code when acting or making decisions.”
The position is different in the case of non-professional or informal decision-makers, such as family members and unpaid carers acting under the general authority in sections 5 to 8 of the Act. Section 42(4) also does not apply to attorneys acting under an enduring power of attorney, the creation of which predated the Act. Although family members and carers and even EPA attorneys should be strongly encouraged to be aware of the code and to have regard to its guidance - not only to promote good practice, but also to impress upon them the seriousness of their actions, and the need to be accountable for them - Parliament considered that it would be inappropriate to impose on them the same strict requirement to act in accordance with the code of practice that it has imposed upon formally appointed decision-makers and professional carers.
Chapters that LPA attorneys need to be aware of
For the first time, standards of good conduct have been formally imposed upon decision-makers appointed under a power of attorney or a court order. In addition to having regard to the chapter on Lasting Powers of Attorney - chapter 7 - paragraphs 7.54 and 7.55 of the code say that attorneys should pay special attention to chapters 2, 3, 4, and 5, and that in some circumstances they might also find it useful to refer to guidance in chapters 6, 8, 9 and 15.
Legal advisers who prepare LPAs will need to draw attorneys’ attention to their duty to have regard to the code and, in particular the chapters referred to in paragraphs 7.54 and 7.55. They should bear in mind that not all attorneys have access to the Internet, or to a TSO shop, and they may need to make a policy decision on whether they should provide copies of the Code to attorneys, either free of charge or at cost price, even though this will add considerably to the cost of preparing an LPA. If they intend to reproduce the relevant chapters in a publication of their own, they should consider applying for reproduction rights to the Copyright Unit, Her Majesty’s Stationery Office, St Clements House, 2-16 Colegate, Norwich NR3 1BQ.
Paragraph 7.79 states that “EPA attorneys may find guidance in this chapter helpful. In particular, all attorneys must comply with the duties described in paragraphs 7.58-7.68. EPA attorneys can also be found liable under section 44 of the new Act, which sets out the new criminal offences of ill-treatments and wilful neglect.”
Chapters that court-appointed deputies need to be aware of
In addition to having regard to chapter 8 – What is the role of the Court of Protection and court-appointed deputies? – paragraphs 8.52 and 8.53 of the code say that deputies should pay special attention to chapters 2, 3, 4, and 5, and that in some circumstances they might also find it useful to refer to guidance in chapters 6 and 15.
Failure to comply with the Code
Although the Mental Capacity Act requires certain people to “have regard to” the code, it does not impose a legal duty on them to “comply with” the code, or impose specific penalties if they fail to comply with it. The code should be regarded as guidance rather than instruction. But, if anyone with a duty to have regard to the code fails to follow the relevant guidance contained in it, they may need to explain their reasons for departing from it.
Section 42(5) provides that if it appears to a court or tribunal conducting any criminal or civil proceedings that a provision of a code, or a failure to comply with a code, is relevant to a question arising in the proceedings, the provision or failure must be taken into account in deciding the question. So, for example, if the Court of Protection is considering whether an attorney under an LPA has behaved in a way that is not in the donor’s best interests, it can take into account any failure by the attorney to comply with the code.
The Munjaz case
An good example of the need to give satisfactory reasons for departing from the guidance contained in a code of practice is the case of R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58, [2006] 2 AC 148, where the House of Lords considered the status of the code issued under the Mental Health Act 1983, and the reasons why Ashworth Special Hospital decided to depart from it. Ashworth, on Merseyside, is one of three special hospitals, which provide high security accommodation for particularly dangerous or violent patients. The others are Broadmoor and Rampton. In 2001 Ashworth implemented its own revised written policy on the use of seclusion (solitary confinement), which differed in various ways from the code of practice issued by the Secretary of State for Health under section 118 of the Mental Health Act. For example, it required fewer medical reviews of the period of seclusion.
Mr Munjaz, who was then in his mid 50s, and had been an inpatient at Ashworth since 1994, complained of four periods of seclusion during 2001 and 2002 - the longest lasting for 18 days and the shortest 4 days – and he applied for a judicial review of Ashworth’s policy, alleging that it was unlawful under domestic law, and that it contravened his rights under the European Convention on Human Rights.
Mr Justice Sullivan dismissed the application: [2002] EWHC 1521 (Admin). The Court of Appeal, however, upheld Mr Munjaz’s appeal, and declared that the hospital’s policy was unlawful: [2003] EWCA Civ 1036; [2003] 3 WLR 1505. In a majority decision, the House of Lords held that the Court of Appeal had given the code of practice a stronger effect than was permissible - a weight that Parliament had never intended to give it. The code is guidance, not instruction, and it was too strong to say that the hospital could not depart from it. Nevertheless, the circumstances in which the code was drawn up and the high importance of protecting detained mental patients from abuse showed that it should be given great weight. It was to be considered with great care, and any departure from it would require cogent reasons. Such reasons would be the subject of intense scrutiny by the court. However, the statutory scheme left the power and responsibility of making the final decision to those with the legal and practical responsibility, and on the particular evidence in this case Ashworth Special Hospital had justified its policy. The section on seclusion in the code of practice was addressed to mental hospitals generally, and did not address the special problems of high security hospitals, and Ashworth had carefully considered the code before departing from it.
Possible reasons for departing from the guidance in the Code
In the first edition of his Mental Capacity Act Manual (Thomson: Sweet & Maxwell, 2005), at pages 9-91 to 9-92, Richard Jones has suggested that, “the following would constitute a good reason for justifying a departure from the guidance in the code”:
1. the particular clinical or social care needs of P (or a group of persons who share particular well-defined characteristics) would not be satisfied if the guidance was followed.
2. there has been a determination of the High Court that a particular aspect of the guidance is not legally accurate.
3. legal advice has been received which casts a significant doubt on the legal correctness of an aspect of the guidance.
4. following the guidance would involve breaching P’s rights under the European Convention for Human Rights.
5. a judgment is taken that a particular aspect of the guidance should not be followed for safety or other legitimate reasons.
Revising the Code
The Code of Practice is a living document, and the aim is to create a maintained, accurate document that grows and develops over time. Subsections 42(2) and (3) of the Mental Capacity Act say that the Lord Chancellor may from time to time revise the code, and that he may delegate the revision of the whole or any part of the code so far as he considers expedient.
On 4 November 2004, when the Mental Capacity Bill was at the committee stage, David Lammy MP, the then Parliamentary Under-Secretary of State at the Department of Constitutional Affairs, informed the committee that, “As case law develops, we may revise sections of the code regularly - perhaps several times a year. It would be very cumbersome for Parliament to have to debate each revision. The first revision of the code laid before Parliament will have been subject to extensive consultation. …. Following Royal Assent, a fully revised draft code will be put out for formal public consultation in accordance with Government guidelines on consultations, and we will consult before each revision.” The Lord Chancellor will delegate the revision of the code to the Office of the Public Guardian.
Conclusion
The Code of Practice has the potential - more than any other aspect of the Mental Capacity Act 2005 - to revolutionise the way we treat people who are unable to make decisions for themselves. I am tempted to compare the code’s relationship to the Act with that of a commentary to scripture, but the explanatory notes to the Act perform that function. The code is more than that. It is a compendium of received wisdom. I just hope that people will find the time to read, mark, learn, and inwardly digest it.
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