Why proposed changes to the Mental Capacity Act's code of practice matter to social workers

Published by Professional Social Work magazine, 29 March 2022

Three years ago, the government passed the Mental Capacity Amendment Bill Schedule AA1, or liberty protection safeguards (LPS).

At the time, I wrote an opinion piece for Professional Social Work expressing the view that frontline professionals will be working harder as they will be required to complete the assessments previously completed by deprivation of liberty (DoLs) professionals. I also noted concerns that many LPS authorisations will be signed off in-house by public bodies, without the person receiving a face-to-face assessment by an independent professional.

While we still don’t know when LPS will be enacted, this March the government published several important consultation documents, including a new draft combined Code of Practice. This will provide statutory guidance for professionals using both the Mental Capacity Act (MCA) and LPS. 

The government intends that LPS will replace the current complex framework of arrangements for approving deprivations of liberty across different care settings. It is intended that LPS will be much cheaper; more streamlined to enable people to have timely access to safeguards and will fully embed the MCA across all health and social care settings. To achieve the latter objective, it is essential that the new code provides clear guidance for practitioners.

Firstly, the good news. The chapters of the draft code on the application of the general MCA have been able to incorporate 15 years of practice learning, plus fine-tuning of the legislation provided by the courts through case-law.

There is helpful clarity over previously ambiguous areas such as when there is a need to consider capacity, the issue of “executive functioning”, and fluctuating capacity. I was especially keen to read the chapters on the new LPS – and it was here that I was to be disappointed.

In the 2014 “Cheshire West” case, the Supreme Court outlined the “acid test” which provided much-needed legal clarity regarding the threshold for when a person becomes deprived of their liberty.

In her rationale for the judgement, Lady Hale was clear that people with a disability should have the same access to human rights and legal safeguards as everybody else.

In Chapter 12, the case vignettes about “constant supervision and control” appear to be an attempt by the government to dilute the “acid test” and to significantly raise the threshold for determining a deprivation.

Please have a look at the case vignettes for Jennifer, Jack and Marsha etc, and try telling me that these are not “constant supervision”.

If this guidance remains unamended then we will go back to the bad old days of pre-2014, when nobody really had a clue as to the threshold of when a person was deprived. It will also mean that many vulnerable people will be denied access to legal protections.

Moreover, as someone who considers themselves reasonably “legally literate” and who will have to teach this material, I was quite baffled by some parts of the guidance. I was making written notes as I read and kept writing “what does this mean?” and “not clear”.  

An example of this is chapter 18 which provides details of the role of the Approved Mental Capacity Professional (AMCP) who will become involved if there is “reason to believe” that a person might be objecting to their care arrangements, or if they are in an independent hospital.

I was confused as to what specific powers the AMCP will have to reduce the restrictions in a person’s care plan. On a similar note, the guidance is vague as to when the AMCP will be signing-off the final authorisation, or when in “complex cases” (13.53) they must defer to allow a senior manager for the responsible body to do this task.

The consultation period has given stakeholders until 7 July to send their feedback to the government. If we are to avoid a repeat of the previous DoLS debacle then it vital that social workers engage with this process.

Mark Cooper is a lecturer for the approved mental health programme at the University of Manchester, a Best Interest Assessor (BIA) and Approved Mental Health Professional.