Mental capacity code of practice announced to ease Bill’s final passage

Care minister Caroline Dinenage has announced plans to introduce a code of practice for mental capacity assessments in an effort to appease concerned MPs.

In an open letter she says that with added protections against conflict of interest, the system of ‘Liberty Protection Safeguards’ proposed by the Law Commission in 2018  and being adopted in the BIll “provides robust protections”.

The proposed Code of Practice for the Bill, currently in development, will contain up to date information, examples and description of best practice to support protections added to the Bill during its passage through Parliament.

The added protections are:

  • Before an authorisation is given, it must be reviewed by someone who is not involved in the day-to-day care or in providing any treatment to the person: in care home cases, it cannot be completed by care home staff or the manager
  • Authorisations will be granted only where arrangements are necessary and proportionate
  • There will remain an entitlement to independent advocacy. A cared-for person will be able to request an Independent Mental Capacity Advocate (an “IMCA”)
  • People subject to a deprivation of liberty assessment will be supported to take part in the process and raise objections.

The Bill is now due to have its report stage and third reading on a date to be announced. Amendments can be made to the Bill at report stage. View the progress of the Bill.

Compared to its early iterations, the Bill has removed much of the dangerous conflict of interest highlighted by MPs. However, Labour MP and shadow minister for mental health and social care Barbara Keeley says concerns remain, notably that local authorities can choose whether to trust care home managers to carry out their own authorisation process. “This risks further entrenching the postcode lottery that we can already see in our social care system. Some local authorities will delegate the whole process to care home managers.”

She has also challenged the care minister on the £1 million training budget for care home manager training. She said: “That is based on care home managers undergoing half a day’s training in this entirely new system. To assume that they will get by with half a day’s training on this new system is very worrying.” 


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