The Mental Capacity Act and Liberty Protection Safeguards

The Mental Capacity Act (MCA) and Liberty Protection Safeguards (LPS) draft Code of Practice has arrived.

The government ran a consultation from March to July, to seek views on proposed changes to the Mental Capacity Act 2005 Code of Practice and implementation of the Liberty Protection Safeguards. 

View information about the consultation, new regulations and training framework on GOV.UK.

Watch our webinars where we discuss the LPS consultation.

Highlights from the Code of Practice

The new Code of Practice is 518 pages. We have highlighted the parts most relevant to our practice:

As before, it will be a statutory Code providing important expansion about how the MCA applies in practice. Therefore, any court (not just the Court of Protection) would take a very dim view of failure to comply with the Code.

Up until now, we have had a ‘main’ MCA 2005, and a separate Code for the Deprivation of Liberty Safeguards, which came later. This new Code integrates the sections relating to the Liberty Protection Safeguards and the sections relating to the main MCA into one document.

The new Code gives more guidance about what it means to ‘lack capacity’ and much of it is based on the case law guidance that has come out of the Court of Protection since the MCA was first introduced. An example being the ‘diagnostic’ test’ which the Courts have made clear was formulated the wrong way round. It is now advised that we should be checking whether the person understands, retains and weighs the information and, if they are having trouble with this, we then ask if there may be an impairment or disturbance of the mind or brain that could cause this. There is also more detail on some of the thorny areas such as fluctuating capacity and what is sometimes called ‘executive dysfunction’.

Following the many examples of case law, the Code also gives some guidance relating to how we take account of wishes and feelings, values and beliefs when making best interests decisions.

There is a chapter on children and young people which will be helpful when considering the relationship between the MCA and Gillick competence. This makes clear that, where a 16 to 17 year old lacks capacity to make a relevant decision, there may be a choice between proceeding under s.5 MCA 2005 or by obtaining consent from a person with parental responsibility.

Much of the more recent legislation in this area now expressly refers to the MCA 2005 (e.g. the Children and Families Act 2014) and so this chapter of the Code addresses the interaction between these different areas of legislation.

Training and next steps

We will be producing information and training for all those involved in providing care to people aged 16+. We will tailor this to be relevant to different parts of the care sector.

We are working with BCP Council, Dorset CCG and the local NHS Trusts to produce information and training that complements each other. We want to avoid giving contradictory messages.

In the meantime, you should make sure your staff have a good working knowledge of the Mental Capacity Act. This will remain the basis of decision-making for people who are unable to make decisions for themselves and will underpin the LPS system.

The better integrated the MCA is into the way we work, the easier it will be to introduce the LPS successfully.

The new MCA regulations

Approved Mental Capacity Professional (AMCP) is a specialist role in the LPS scheme, requiring expert knowledge and practice experience. It is not the same as the Best Interest Assessor (BIA) role in the DoLS scheme.

Under the new MCA regulations, professionals who intend to convert from a BIA to practice as an AMCP must:

• be approved by a Local Authority
• be registered as a nurse, a social worker, an occupational therapist, a psychologist or a speech and language therapist
• have completed the additional training for the role

BIAs who have qualified and been practising for 12 months will be able to complete a conversion course to become AMCPs. Details of this training are not available yet but will be out after the LPS consultation period.

The role of an AMCP

The AMCP’s primary role is to determine if the LPS authorisation conditions are met.

A case must be referred to an AMCP if:

• there is reasonable belief a person does not wish to live or receive care or treatment in a place, and the arrangements provide for this
• the arrangements are being carried out mainly in an independent hospital
• a case is referred to the AMCP and the AMCP accepts

Once the AMCP has assessed their case, they will then advise the Responsible Body whether or not the authorisation conditions are met.

AMCPs will also carry out reviews where it becomes clear after an authorisation is given, that the person does not wish to reside or receive care or treatment in the place.

Training will be arranged by the Local Authority for existing BIAs to convert but details are not yet known.

Conditions of approval

The regulations state the following:

5.—(1) A person approved as an AMCP must, before the end of each year of approval as such, satisfy the approving local authority that they have—

(a) completed at least 18 hours of further training during that year of approval,

and

(b) carried out their AMCP functions to a standard such that it would be appropriate for the approval to remain in place