Joint Committee on the Draft Mental Incapacity Bill First Report

13 Chapter 13: (Clause 30) Codes of Practice

228. Clause 30(1) requires the Lord Chancellor (or whoever takes over the duties and responsibilities of that office) to prepare a Code or Codes of Practice for the guidance of people involved in the assessment of capacity, for people using the various decision-making powers under the new Act, and with respect to any other matters as s/he thinks fit. There has been universal agreement in evidence to the Committee that Codes of Practice will be essential to the proper implementation and operation of the new legislation.

229. We have found it difficult to carry out our task in conducting thorough pre-legislative scrutiny of the draft Bill without having sight of drafts of the Codes of Practice. We were reassured to hear in evidence from Lord Filkin, Parliamentary Under-Secretary of State , that it is the aim of the Department for Constitutional Affairs for the Codes of Practice to be published in draft at the same time as the Bill is introduced in Parliament.[256] Although we re-iterate our anxiety to keep up the momentum and ensure that introduction of the Bill is not unduly delayed, we recommend that the Bill should not be introduced to Parliament until it can be considered alongside comprehensive draft Codes of Practice.

Status of the Codes of Practice

230. Clause 30(6) places a duty on anyone acting in a professional capacity or for remuneration in relation to a person who lacks capacity to "have regard to any relevant Codes of Practice". Several organisations sought clarification of the legal status of the Codes of Practice and any sanctions which might apply for non-compliance with the codes.[257] One way to strengthen the status of the codes may be to use a formulation of words similar to section 7(1) of the Local Authority Social Services Act 1970, which states that local authorities, in the exercise of their social services functions "shall … act under the general guidance of the Secretary of State". The binding nature of such guidance has been confirmed by the court so that local authorities may only depart from it with good reason.

231. Following a recent decision of the Court of Appeal it has been established that a Codes of Practice are one essential means by which the State fulfils its obligation to ensure that public authorities act in compliance with the Human Rights Act 1998. Codes of Practice can provide transparency and predictability where human rights compliance requires this in cases where it is impossible to draft the legislation in sufficient detail to cover all circumstances in which the law might apply. The Codes of Practice should therefore be afforded sufficient status consistent with this purpose. All public authorities, which includes professionals and others employed by public bodies, should be under a duty to abide by the Codes of Practice and any departure from the guidance given in the codes should only be justified in exceptional circumstances when full reasons must be given. We seek reassurance that the wording used in the Bill will ensure that the Codes of Practice are afforded sufficient status to comply with human rights obligations.

232. The position is different with regard to guidance issued to assist non-professional or informal decision-makers, such as family members and unpaid carers acting under the general authority. It is essential that family members and carers carrying out such responsibilities are provided with appropriate guidance and assistance, both to promote good practice and also to impress upon them the seriousness of their actions and the need to be accountable for them. We accept that it would be inappropriate to impose on them a strict requirement to act in accordance with the Codes of Practice. We agree that only those acting in a professional capacity or for remuneration should be under a duty to abide by the Codes of Practice. However, we believe that family members and carers should be strongly encouraged to follow the Codes of Practice.

Preparation and revision of the Codes of Practice

233. Several witnesses drew the Committee's attention to existing guidance which has already helped to promote good practice and could form the basis of the Codes of Practice under the Bill.[258] We welcome the provision in Clause 30(4) for the preparation of the codes to be delegated in order to build on existing sources of guidance and to make use of the wealth of expertise available, not only that of professionals working with people who lack capacity but also that of people likely to be directly affected by the Bill's provisions. In particular, we were impressed with the evidence given by organisations of people with learning disabilities and were told of their work in helping to prepare documents in a format accessible to learning disabled people and in providing training for professionals and others working with them.[259]

234. We hope that the Department will make use of a wide range of expertise, both professionals and those affected by the Bill's provisions, in the preparation and revision of the Codes of Practice. In particular, organisations of people with learning difficulties should be involved in training and producing accessible versions of the codes.

235. We also welcome in clause 30(3) the requirement to consult before preparing or revising a Codes of Practice. It is clearly essential to involve practitioners in identifying issues which should be addressed in the codes. We hope that such consultation will include inviting comments on the draft codes and allowing the results of the consultation to be taken into account before the final versions are laid before Parliament. Lessons may also be learnt from the experience in Scotland, where detailed Codes of Practice have been produced, but which one witness described as being "quite dense".[260] The same witness recommended the Codes of Practice issued under the Disability Discrimination Act 1995 as being "very helpful indeed in giving real life situations".[261]

236. The Law Society of Scotland described to us the "exhaustive on-going multi-disciplinary training relative to the then Bill and now the new Act; …extensive accessible training materials … [and] extensive regularly updated guidance".[262] Professor Michael Gunn confirmed the view expressed in many submissions to us that legislation of this sort will rely heavily, not only on clear, comprehensive and accessible Codes of Practice, but also on the training, education and public awareness campaigns that must lead in to and follow on from implementation of the new law.[263]

237. We recognise the efforts already made by the Department of Constitutional Affairs to raise awareness of the issues affecting incapacitated adults, through the Mental Incapacity Consultative Forum and other initiatives. We hope the momentum will be sustained, not only to capitalise on the public and professional interest generated by the publication of the draft Bill but also to inform the preparation of the Codes of Practice.

Content of the Codes of Practice

238. In a number of submissions to the Committee , concern was expressed that too much detail is being left to the Codes of Practice rather than being specified on the face of the Bill.[264] We have considered some particular concerns about the scope and content of the codes.

Supported decision-making

239. A key principle of the Bill is the presumption of capacity - that every adult has the right to make their own decisions and is assumed to have capacity to do so unless it is proved otherwise. Some people may need help or support to be able to understand the decision they are being asked to make, to know how to make a choice or to be able to communicate, but the need for help and support does not remove their right to make their own decisions.

240. Although the Bill deals primarily with decision-making on behalf of people who lack capacity, many submissions to the Committee stressed the need for greater emphasis on supporting and enabling people to make their own decisions.[265] We were given examples of how people with impaired capacity, even those with profound disabilities, can be helped and supported to make their own choices. Values into Action in particular suggested that "new guidance is needed on the use of supported decision-making to ensure the fullest possible involvement of the person deemed to lack capacity".[266]

241. Clause 2(3) states that a person is not to be treated as unable to make a decision unless "all practicable steps" have been taken to help the person make a decision themself. We agree that a Codes of Practice on supported decision-making would be extremely helpful, particularly to provide guidance on the "practicable steps" which should be taken to assist people to make their own decisions and also on the various types of communication aids, therapies and assistance available to help people to communicate those decisions.

Assessment of capacity

242. Clause 30(1)(a) requires the preparation of a code of practice for the guidance of people assessing whether a person has capacity in relation to any matter, but the Bill makes no other specific provision in relation to assessment of capacity. The Making Decisions Alliance (MDA) wrote in its submission that "Given its fundamental importance, coverage of assessment [of capacity] in the draft Bill is alarmingly sparse".[267] The MDA recommended that the term "assessment" should be clearly defined in statute, in order to clarify when an independent assessment of capacity is required and how, and by whom, it should be carried out. The British Psychological Society suggested that the Bill should specify a "robust, transparent and practical system"[268] for the determination of incapacity and proposed a formal process of registration of persons lacking capacity in relation to certain major decisions.[269] Other submissions pointed out that where any significant infringement of a person's right to autonomy is contemplated, human rights considerations require a proper assessment to be carried out.[270]

243. As is currently the case under the existing law, the Bill adopts a functional approach to capacity, which means that the question of who should assess capacity, and the test of capacity to be applied, will depend on the particular decision to be made. For most day-to-day decisions, the carer most directly involved with the person at the time the decision has to be made assesses their capacity to make the decision in question. Formal processes are rarely required unless the assessment is challenged, for example by another family member. Where consent to medical treatment or examination is required, the doctor proposing the treatment must decide whether the patient has capacity to consent and should record the assessment process and findings in the person's medical notes. Where a legal transaction is involved, such as making a will or a power of attorney, the solicitor handling the transaction will need to be satisfied that the client has the required capacity to satisfy the relevant legal test, perhaps assisted by an opinion from a doctor. In some situations, case law demands that a doctor should witness a document or otherwise attest to the person's capacity. The draft Bill includes provision to formalise this procedure for Lasting Powers of Attorney (LPAs), by requiring a certificate of capacity at the time the LPA is created.

244. The more serious the decision, the more formal the assessment of capacity may need to be, but whoever assesses capacity must be prepared to justify their findings. Ultimately, if a person's capacity to do something is disputed, it is a question for the court to decide. Cases referred to the new Court of Protection will require formal evidence of the assessment of capacity, either to enable the Court to make a declaration as to whether the person has or lacks capacity or to confirm that the Court has jurisdiction to deal with the matter in question.

245. Given the diverse range of situations which will be covered by the statutory framework for decision-making imposed by the Bill, we consider that the processes and requirements relating to assessment of capacity would be most appropriately dealt with in a Codes of Practice, as required under Clause 30(1)(a).

Best interests

246. In the section of this report on Clause 4 relating to "best interests" (see Chapter 7) we have already commented on proposals put to us to clarify and expand on the factors to be considered when determining best interests. We have acknowledged that, whatever drafting changes are made, there will still need to be more detailed explanations, illustrated by practical examples, in the Codes of Practice.

247. The Codes of Practice will need to cover, amongst other matters, the concept of best interests itself; the processes and issues involved in considering the factors set out in the Checklist in Clause 4 (including ethical issues such as confidentiality); suggestions of the types of additional factors which may be relevant in different situations and guidance on weighing up competing or conflicting concerns.

General authority

248. Major concerns have been expressed to us about the broad scope of powers available under the general authority[271] and the lack of protection for people lacking capacity against decision-makers who abuse those powers.[272] While guidance for people acting under the general authority will be essential, we agree that the Codes of Practice alone cannot be relied on to ensure good practice and that restrictions on the use of the general authority must be set out in statute. Our recommendations on this matter are set out in paragraphs 118,. 123, 127 and 129.

249. The Codes of Practice will need to include, amongst other matters, a clear explanation of the general authority as the means whereby practical and legally relevant decisions can be made, in a manner that is enabling and respectful of the person lacking capacity; guidance and examples setting out when it might be "reasonable" to act; the scope of the authority and how it links with other decision-making powers; and the requirement for all decision-makers to be fully accountable for their actions.

Decision-makers acting under formal powers

250. Clause 30(1)(c) and (d) require the Codes of Practice to provide specific guidance for donees of lasting powers of attorney and for deputies appointed by the court. We agree that those exercising formal powers under the Bill will need clear and specific guidance about their legal duties and responsibilities and about the extent of their powers.

251. In our discussions on the concept of best interests, we considered a proposal put forward by the Master of the Court of Protection that there should be a comprehensive statement of the standard of conduct required of everyone who acts or makes decisions on behalf of persons without capacity.[273] The Master suggested a number of general obligations which should be imposed on decision-makers in addition to their specific duties, which might include obligations:[274]

  • to act reasonably;
  • to act diligently;
  • to act honestly and in good faith;
  • to act within the scope of his or her authority;
  • to limit interference in the life of the person without capacity to the greatest extent possible;
  • to protect him or her from abuse, neglect, and exploitation;
  • to respect and advance his or her civil liberties and human rights;
  • to provide such assistance and support as is needed;
  • where appropriate, actively to help him or her resume or assume independent or interdependent living;
  • to involve him or her in all decision-making processes to the greatest possible extent;
  • to encourage such participation and to help him or her to act independently in the areas where he or she is able;
  • to encourage him or her to exercise whatever skills he or she has, and wherever possible to develop new skills; and
  • to exercise substituted judgment by respecting and following his or her wishes, values and beliefs to the greatest possible extent, so far as these are known or can be ascertained, and will not result in harm or be contrary to his or her best interests.

252. We agree that it would be helpful to include in the Codes of Practice a checklist of obligations along the lines set out above, setting out the standard of conduct expected of formal decision-makers. We recommend that specific requirements of a standard of conduct be included in the Codes of Practice aimed at those exercising formal powers under the Bill.

Monitoring implementation of the Codes of Practice

253. The draft Bill contains no specific provisions for monitoring the implementation of the Codes of Practice or keeping the operation of the codes under review. The summary paper on 'Implementing the Draft Mental Incapacity Bill' provided to us by the Department for Constitutional Affairs described the supervisory role envisaged for the new Office of the Public Guardian (OPG) in monitoring LPAs and deputies, which will presumably involve consideration of their compliance with the Codes of Practice.[275] We recommend that the Codes of Practice should provide details of the OPG's supervisory role and the sanctions which may apply in the event of non-compliance with the codes.

254. In our comments on the new Court of Protection,[276] we consider the appropriateness of court proceedings in dealing with complaints and disputes about the discharge of functions and use of powers under the Bill. In particular, we recommend that the Court's powers should include the power to remove a donee or deputy who is acting incompetently or failing to comply with the guidance given in the Codes of Practice as to the expected standard of conduct. It should be made clear to decision-makers that if their behaviour falls below the standard of conduct set out in the Codes of Practice, the court has power to remove them as attorneys or deputies and if their conduct is criminal, they will face the prospect and consequences of prosecution.

256   Q718 (Lord Filkin) Back

257   Ev 203 MIB 1030 para 14.1, Ev 461 MIB 998 para 30, Ev 481 MIB 1060 para 7 Back

258   See for example Ev 457 MIB 997 para 12, Ev 203 MIB 1030 para 7.1 Back

259   Ev 232 Q645 (Mr MacGiven) Ev 228 MIB 778, Ev 230 MIB 733 Back

260   Ev 213 Q583 (Mr Clements) Back

261   Ev 213 Q583 (Mr Clements) Back

262   Ev 3 Q1 (Ms Craigmyle) Back

263   Ev 146 MIB 1187 Back

264   Ev 173 Q427 (Mr Dixon) Back

265   Ev 228 MIB 778 Ev 230 MIB 733 Back

266   Ev 230 MIB 733 para 9(i) Back

267   Ev 46 MIB 950 para 5d.5 Back

268   Ev 101 MIB 817 para 5 Back

269   Ev 102 MIB 817 para 5.b Back

270   Ev 416 MIB 1192 Back

271   See para 118 (this Report) Back

272   See para 120-122 (this Report) Back

273   See paras 97-98 (this Report) Back

274   Ev 184 MIB 1049 para 13 Back

275   Ev 261 (MIB 1222) Back

276   Chapter 10 Back

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