Our response to the consultation on the changes to the MCA Code of Practice and the implementation of the LPS.

Yesterday we submitted our response to the Government’s open consultation on the changes to the MCA Code of Practice and the implementation of the LPS.

Our response is based on our experience of advising on the DOLS framework, the Mental Capacity Act 2005, the Mental Health Act 1983 and Court of Protection cases and feedback provided to us at our webinars regarding the Draft Code along with conversations with our clients.

We raise the following key points in our response:-

1. We request better guidance for Responsible Bodies on when they should make an application to the court where P is likely to challenge an LPS authorisation on the basis they disagree that the arrangements amounting to their deprivation of liberty are in their best interests. In particular, should Responsible Bodies proceed with the LPS authorisation and either issue an application under S.21ZA itself or wait for P to make a challenge under Section 21ZA – or - should they make a pre-emptive welfare application to the court to authorise the deprivation of liberty rather than issuing the LPS authorisation (taking into account this may have funding consequences for P given legal aid will be means tested.)
2. The case law providing guidance about the “relevant information” for assessing capacity to make specific decisions (para 4.28) should be expanded to include guidance on the relevant information for making decisions about sexual relations (A Local Authority v JB [2021] UKSC 52) and relevant information for making decisions re social media and internet use (Re A [2019] EWCOP2). We also request more detailed guidance for professionals assessing capacity for persons with conditions affecting their executive function.
3. We note that the guidance in Chapter 12 for identifying a deprivation of liberty appears to impose a higher threshold for what amounts to a deprivation of liberty that requires authorisation than exists in law and practice – and raise whether such a change is appropriately implemented through guidance as opposed to primary legislation or regulation. We also suggest cases such as A Local Authority v AB [2020] EWCOP 39 and Re AEL [2021] EWCOP 9 should be incorporated into Chapter 12, the latter of which suggests erring on the side of caution if there is doubt as to whether arrangements amount to a deprivation of liberty.
4. We question whether the apparent extension of the Ferreira ruling to the whole hospital environment rather than ICU (para 12.77 to 12.81) is sufficiently supported by case law.
5. We suggest better guidance is required on the type of arrangements that will amount to “a vital act” under Section 4B in non-emergency scenarios.
6. We request better guidance for Responsible Bodies on who can undertake the pre-authorisation review for the Responsible Body if an Approved Mental Capacity Professional is not required (para 13.46).
7. We emphasise that the descriptions provided in the current example scenarios appear to be too short and lacking in detail to be of best use to professionals and suggest either providing more detailed case scenarios in the Code or adopting the approach taken in Northern Ireland where detailed scenarios have been published separately to accompany the Act and Code of Practice.
8. We suggest the inclusion of summary tables and flowcharts to summarise and succinctly explain key parts of the LPS process.

We will continue to publish updates on the draft MCA Code and the implementation of LPS (as part of our Mental Capacity, Mental Health and Court of Protection updates) and how it impacts on different types of organisation. If you would like to sign up to our updates please click here.

For advice on what steps your organisation could be taking to prepare for the LPS, please contact Hannah Taylor or Simon Lindsay.