Legal effect

  1. A central feature of the Mental Capacity Act (MCA) is authorising the issue of more detailed statutory guidance in the form of a Code of Practice that sets standards for the guidance of people using the Act’s provisions. The policy intent of the MCA recognised that complex legislation of this sort requires an accompanying Code of Practice for the practical guidance of health professionals, lawyers and a range of people involved with adult incapacity and those affected by its provisions.838 The MCA Code of Practice (Code of Practice) was formally issued in April 2007 and came into effect on 1 October 2007 as the statutory guidance for the entire MCA 2005 as originally enacted.839 By comparison, in Singapore where the English MCA was adopted nearly in its entirety, a Code of Practice was drafted, and put in place by the Office of the Public Guardian, at the same the new legislation was passed.840 Both of these Codes of Practice provide guidance to anyone who is working with or caring for adults who may lack capacity to make particular decisions. They explain the key concepts of capacity and best interests and how the law operates on a day-to-day basis. Examples of best practice are set out for carers and a wide range of professionals involved, reflecting a multi- disciplinary approach to applying the law.

  2. The English Code of Practice is issued under the statute, which means that certain categories of people have a legal duty to have regard to it when working with or caring for adults who may lack capacity to make decisions for themselves.841 These people include: an attorney under a lasting power of attorney (LPA), a deputy appointed by the Court of Protection (COP), healthcare professionals, researchers, independent mental capacity advocates (IMCAs) and paid workers acting on behalf of the person who lacks capacity.

  3. The Act and the Code of Practice are constructed on the assumption that the vast majority of decisions concerning adults who lack capacity are taken informally and collaboratively by individuals or groups of people consulting and working together, rather than by one individual who is given special legal status to make decisions. For most day-to-day actions the “decision-maker” is the carer most directly involved with the person at the time. Where the decision involves the provision of medical treatment, the doctor or other clinician responsible for administering the treatment or carrying out the procedure is the decision-maker, and in some cases the Court of Protection is involved.842

  4. The Code of Practice also aims to provide help and guidance to the wide range of less formal carers, such as close family and friends, who have important relationships with the person lacking capacity and are able to support them. It also emphasises that there are specific decisions that can never be made or actions that can never be carried out under the Act, whether by family members, carers, professionals, attorneys or the Court of Protection, because they are so personal to the individual concerned,843 or governed by other legislation.844

838 Provision for statutory guidance is made in the Act under s 42 of the MCA 2005. House of Lords, House of Commons Draft Mental Incapacity Bill, above n 779 at 64 [229].

839 MCA Code of Practice, above n 164. A supplement to the Code has since been issued separately to deal with the deprivation of liberty provisions inserted into MCA by the Mental Health Act 2007, which came into effect in April 2009. The Department of Health and the Office of the Public Guardian have also produced complementary materials to the MCA Code of Practice.

840 Mental Capacity Act 2008 (Singapore); Office of the Public Guardian Code of Practice: Mental Capacity Act (Chapter 177A) (3rd ed, OPG, Singapore, 2015). The Code of Practice is also much shorter, 100, not 300 pages long, as with the MCA Code of Practice. Interview with Sumytra Menon, lawyer involved with drafting the Singapore MCA Code of Practice, Senior Assistant Director, Centre for Biomedical Ethics, National University of Singapore, 31 March 2015, Singapore.

841 Mental Capacity Act 2005, s 42(4) and (5).

842 MCA Code of Practice, above n 163 at 5.8.

843 For example, decisions concerning family relationships such as consenting to marriage or a civil partnership: Mental Capacity Act 2005, s 27.

844 For example, treatment for mental disorder under Part 4 of the Mental Health Act 1983: Mental Capacity Act 2005, s 28, or s 29 – voting rights.

Sanctions for non-compliance
  1. The Code of Practice is viewed as guidance, rather than instruction.845 It requires that certain cases to be brought before the court, but no legal liability arises from a breach of the Code itself. Nevertheless, a failure on the part of a health professional to comply with the Code’s guidance would be taken into account in any relevant proceedings in a court or tribunal. It would, for example, be relevant to an assessment of a doctor’s fitness to practice before the General Medical Council.846

  2. Compliance with the Code of Practice is relevant to the application of the statutory defences that are available to health professionals under the MCA. Section 5 of the MCA, for instance, provides certain statutory protection to carers and healthcare professionals who provide care and treatment that is necessary and in the best interests of a person who lacks capacity to consent.847 In the law reform process that produced the MCA, the legal position of informal carers, such as family members, was carefully considered. It was recognised that it was essential that family members and carers comply with their legal responsibilities, and understand the seriousness of their actions and the need to be accountable for them. However, it was considered inappropriate to impose on them a strict requirement to act in accordance with the Code of Practice.848 Although not under a legal duty, informal carers still have an obligation to act in accordance with the principles of the MCA and the best interests of a person lacking capacity.849
Tool for interpretation of the MCA
  1. Judges frequently use the Code of Practice to interpret and apply the law.850 In G v E,851 for instance, Mr Justice Baker explained how the Code of Practice applied in a decision not to appoint a sister and a former carer as personal welfare deputies for E, a 20-year-old man who suffered from severe disabilities. While the Code of Practice gives examples where it can be impracticable to insist on decisions being taken by the court rather than by the appointment of a deputy, the scheme of the MCA is to only appoint deputies under s 16(4) in exceptional circumstances, and they were not found in this case.852

845 MCA Code of Practice, above n 164 at 1.

846 Brazier and Cave, above n 295.

847 Mental Capacity Act 2005, s 5. The provisions of section 5 are based on the common law doctrine of necessity as set out in Re F, above n 125. In addition, s 6 places clear limits on the use of force or restraint by only permitting restraint where this is necessary to protect the person from harm and is a proportionate response to the risk of harm. It is beyond the scope of this report to consider whether statutory protection for carers and health practitioners, as provided for in ss 5 and 6 of the MCA would be appropriate or necessary in New Zealand’s medico-legal environment under the no-fault treatment injury provisions of the Accident Compensation Act 2001.

848 Ashton, above n 26 at 85.

849 MCA Code of Practice, above n 164 at 2.

850 Interview with Judge Elizabeth Batten, District Judge of the Court of Protection (A Douglass, 16 April 2015, Court of Protection, London).

851 Above n 158.

852 In the Code of Practice examples under MCA, s 16(4) include situations that involve a series of decisions about medical procedures or where the assets of an incapacitated adult are of a magnitude that requires regular management: MCA Code of Practice, above n 163 at [8.38] and [8.39]. At [59], Mr. Justice Baker interpreted these paragraphs to mean that, “Common sense suggests that the second of these examples is likely to arise more frequently than the first, that the appointment of deputies is more likely to be more common for property and affairs than for personal welfare”.

  1. The Code of Practice can be used as evidence in a court or a tribunal. In Aintree University Hospitals NHS Foundation Trust v James,853 the first decision of the Supreme Court under the MCA, the Court addressed the question of how doctors and courts should decide when it is in the best interests of a person who lacks capacity to be given, or not given, treatment necessary to sustain life. In a unanimous decision, Lady Hale accepted the statements in the Code of Practice, regarding withholding treatment that can be futile, or overly burdensome to the patient, or where there is no prospect of recovery, as an accurate statement of the law.854
MCA – problems with implementation
  1. The overall finding by the post-legislative scrutiny report of the House of Lords was that the MCA was a very significant and progressive piece of legislation, with the potential to transform lives.855 However, the key problem with implementation was that there was no provision in the MCA to monitor compliance with the Code of Practice, or with the Act more generally.856 This point was made with some force in the House of Lords’ report: 857
    While we recognise that the application of the Act is very wide and a complete picture would be hard to achieve, the absence of any monitoring is indefensible, if the benefits of this legislation are to be delivered.
  2. In practice, the vast majority of cases before the COP concern property, rather than welfare decisions. The experience of Senior Judge Lush of the COP is that attorneys and deputies show a distinct lack of knowledge of the Code of Practice, which can lead to financial abuse.858 Most attorneys and deputies are unaware of the existence of the Code of Practice. Very few have a copy of it, or have downloaded it from the internet and, even if they do have a copy, fewer still have read it or applied it in practice. Senior Judge Lush says: 859
    More than any other feature of the Mental Capacity Act, the Code of Practice has potential to revolutionise the way we treat members of society who are unable to make their decisions. Over time, the standards laid down in the Code should permeate and influence good practice. However, the Code will only be a success if people know about it and read, mark, learn and inwardly digest it and this simply isn’t happening.
  3. In order to address the failure to embed the Act in everyday practice, the House of Lords recommended responsibility for oversight of the Act’s implementation should be given to a single independent body. The intention was not to remove ultimate responsibility for the MCA from government ministers, but to locate ownership of the Act in one place, so as to provide a clear form of accountability, and a focus for enhanced activity.860

853 Aintree, above n 164.

854 Aintree, above n 164 at [28] and [29] - Lady Hale: “Paragraph 5.31 (of the Code of Practice) gives useful guidance, derived from previous case law, as to when life-sustaining treatment may not be in the patient’s best interests. Both the judge and the Court of Appeal accepted them as an accurate statement of the law and so would I. However, they differed as to the meaning of the words in italics. The Code is no statute and should not be construed as one but it is necessary for us to consider which of them was closer to the correct approach.”

855 House of Lords Select Committee on the Mental Capacity Act 2005 Mental Capacity Act 2005: post-legislative scrutiny (TSO, London, 2014), above n 3 at [12] - [20]. The most significant exception to the Act being considered a good piece of legislation was criticism of the poor drafting and implementation of the Deprivation of Liberty Safeguards. See Chapter 1C Problems with implementation of the MCA.

856 While a number of the witnesses to the House of Lords Select Committee emphasised the importance of focusing more on supported decision-making in order to enhance compliance with the CRPD, the House of Lords Report did not review the compatibility of the MCA with the CRPD. However they received evidence of how the use of the Act in practice could be better aligned with the UN Convention: House of Lords, above n 855 at [51]-[53].

857 House of Lords, above n 855 at [35]. A mechanism for the review of the MCA Code of Practice was not regarded as an answer to poor implementation.

858 Under the MCA, professionals may be employed to carry out the role of deputies and some solicitors specialise as professional deputies. The Court may require a deputy to give a bond (security) for the discharge of their functions and submit reports to the Public Guardian.

859 D Lush “Financial Crime Committed Against the Elderly and Infirm: A Review of its Increasing Prevalence and how Effective Practitioners, Public Bodies and the Courts are Tackling it” (paper presented at a joint seminar STEP London Central Branch and ACTAPS, London, 10 December 2014) at 13.

860 House of Lords, above n 855 at 6, [35], [36], [39]. In the event, the independent body was not established.

Quality of capacity assessments
  1. Evidence before the House of Lords’ Select Committee gave a bleak picture of the quality of capacity assessments. The implementation of the presumption of capacity861 – the idea that capacity must be assumed until proven otherwise – was described as “patchy, at best”.862 The reasons given included: a tendency among health and social care staff to make assumptions based on impairment; the failure to conduct assessments when necessary; poor quality of assessments generally; and the failure to take into account the impact of specific conditions on assessment. Disconcertingly, there was evidence of the presumption of capacity being used to support non-intervention by service providers. The Law Society referred to the presumption of capacity principle being applied “perversely”, to avoid assessing capacity and to justify lack of provision of services.863

  2. Many of the criticisms raised were about the way in which capacity assessments were being carried out by professionals who were not closely involved with the care of the person affected.864 A group of lawyers who jointly submitted evidence to the Select Committee found that: 865
    The best capacity assessments are by people who know P (the person who lacks capacity), and who have experience and training in communicating with people with disabilities, and who see their task as assisting P to make a decision, not testing P’s knowledge.
  3. The English experience to date has demonstrated that even the most up-to-date law that has a clear explanation of its core principles is difficult to embed. It requires participation from the professionals and appointed decision-makers who must implement the law. A consistent theme in the evidence before the House of Lords was the tension between the empowerment that the Act was designed to deliver and the tendency of professionals to use the Act in an overly protective way.866 Prevailing professional cultures of risk aversion and paternalism have inhibited the aspiration of empowerment for people with impaired capacity from being realised.867

  4. One of the recommendations in the House of Lords’ report is that the English Government work with professional regulators and the medical Royal Colleges to ensure that the MCA is given a higher profile. It specifically recommended training for medical students and general practitioners (GPs) to embed and enhance their understanding of the MCA in view of the vital role that GPs play in providing healthcare in the community.868

861 Mental Capacity Act 2005, s 1(2): “A person must be assumed to have capacity unless it is established that he lacks capacity.”

862 House of Lords, above n 855 at [56].

863 House of Lords, above n 855 at [63].

864 The experience of Mark Neary, father to Steven Neary, a young man in his early 20s with autism and a severe learning disability, who was involved with a high profile case, was that the supported process had turned into an adversarial one: House of Lords, above n 854 at [68]. In Hillingdon v Neary, above n 461, the COP held that Steven Neary had been unlawfully detained, against his own and his father’s wishes by the London Borough of Hillingdon in 2010.

865 House of Lords, above n 855 at [69].

866 See Chapter 4A Unwise decisions and the protection imperative.

867 House of Lords, above n 855 at [15].

868 House of Lords, above n 854 at [18].

  © 2020 Alison Douglass