It is vitally important that people who may not have capacity to make decisions about their care do not lose essential protections, the Law Society of England and Wales said in its response to the UK government’s consultation on proposed changes to the Mental Capacity Act 2005 (MCA) Code of Practice.
Law Society president I. Stephanie Boyce said:
“We are pleased the UK government is updating the out-of-date code of practice to match new legislation affecting some of the most vulnerable in our society.
This could affect someone with Alzheimer’s who cannot approve their medication, for example, or someone who needs to be restrained for their own personal safety.”
The MCA protects the rights of people who lack the mental capacity to make decisions about their care and treatment.
Its new code of practice will provide guidance for those who work with or care for people who may lack capacity, including attorneys appointed under a lasting power of attorney (LPA). It will also feature guidance on new safeguards.
“Our overriding concern is ensuring that new safeguards do not weaken protections for people who may not have the capacity to consent to care and treatment,” said I. Stephanie Boyce.
“We are particularly concerned that the draft code of practice does not correctly identify when a person is at risk of being deprived of their liberty.
This creates the risk that people who are deprived of their liberty will not have the opportunity to challenge the lawfulness of their situation.
Additionally, if a deprivation of liberty is not recognised as such, necessary safeguards may be bypassed. This could mean, for instance, that someone may be prevented from ever leaving their home even if no assessment took place to prove this is necessary.
We urge the government to talk to us and other experts in this field to keep people who may lack capacity at the centre of any guidance.”
