The Mental Capacity Act 2005 raises questions about safeguards for incapable people, says Fenella Morris

Although the Mental Capacity Act 2005 was passed in April, a huge amount of work remains before its intended implementation in April 2007. This work includes not just putting in place the personnel and structures for the new scheme's operation, but also further work on the documents on which those using it will rely.




Code of practice


The code of practice is expected to play a key role in the interpretation of the Act and its implementation. Often the code is the principal guide to the primary legislation.


The Parliamentary Joint Scrutiny Committee specifically recommended that the Act should not be introduced to Parliament until it could be considered alongside a draft code.


Its importance to the committee was reinforced by the fact that many of its recommendations related to matters that it considered should be covered in the code, such as the duty of care of attorneys and deputies, the standards of conduct of decision-makers, and the requirements to be fulfilled on an assessment of capacity.


However, the draft code was described by David Lammy MP, proposing the Bill at the House of Commons committee stage, as 'a work in progress', although it was intended that it would be published 'in good time before the Bill is implemented'.


At the time of writing, the code, despite its vital role, remains in draft, and it is expected that its final format may be very different from the current draft.


It is to be hoped that it does not take as long as the code of practice issued under the Mental Health Act 1983, which was not published until 1990.


This uncertainty about the content of the code is intensified because it is anticipated that it will be reviewed after the first year and revised regularly, perhaps several times a year, thereafter.


Since the recent judgment of the House of Lords concerning the effect of the code of practice issued under the Mental Health Act 1983 in the case of R (Munjaz) v Ashworth Hospital and others [2005] 3 WLR 793, questions also continue about the status of the code under the 2005 Act. Section 42(2) of the Act imposes a duty on a person to 'have regard to any relevant code if he is acting in relation to a person who lacks capacity' and is doing so in one of the ways listed.


Section 42(5) of the Act provides that a court or tribunal conducting any criminal or civil proceedings may find the code or a failure to comply with it a relevant matter to be taken into account in its adjudication.


The draft code itself provides that persons who are under a duty to 'have regard to' it must be able to demonstrate that they are familiar with the relevant part of it, and if they depart from it they will be expected to give reasons why.


By comparison, the Lords decided that where the code of practice under the Mental Health Act 1983 concerns fundamental rights, then it must be complied with in the absence of good reasons otherwise, and such reasons, if challenged, to be subject to intense scrutiny.


This suggests that the code under the 2005 Act may not have the status initially envisaged, or alternatively that companion parts of the statutory scheme will operate by codes of different status. Neither seems a particularly desirable outcome.




Advocates


Access to advocacy services has been one of the more problematic issues throughout the passage of the Act. The government, while recognising the value of independent advocacy to people with capacity problems, made it clear that it did not wish to provide for general advocacy.


Therefore, the original draft Bill contained no provision for independent advocacy. Subsequently, concerns were expressed in relation to the 'unbefriended'. The government responded by introducing into the Bill the 'independent consultee', who was to advise NHS bodies and local authorities on a person's best interests.


Additional concern was expressed during the deliberations of the House of Commons standing committee about the confusion surrounding the role of the independent consultee. It noted a 'conflation between advocacy and the independent appointee type of function' in the provisions of the Bill. The government again responded, making it clear that the provisions in relation to the independent consultee were a 'work in progress', and that it needed time to develop its thinking, having consulted widely.


The Department of Health went on to issue a consultation paper on the Independent Mental Capacity Advocate Service. The consultation period ended on 30 September 2005. The government has yet to clarify the exact role of the consultee, and it is expected that much of the detail about how the system will operate will be contained in regulations and the code. Particular concern arises in respect of the proposal that advocates should be able to bring 'simple' cases before the courts without the need for legal representation.




Bournewood gap


This is probably the most significant human rights issue facing persons who lack capacity, and it has not been resolved by the Act. The gap exists because of a lack of procedural safeguards for incapable persons who are detained in hospital or who suffer a restriction on their liberty, but who are not subject to the Mental Health Act 1983.


The Joint Parliamentary Select Committee on Human Rights reported on the Bill in its 15th report in 2004/05. It was concerned that the Bill failed to close the gap particularly in the light of the judgment of the European Court in the Bournewood case HL v UK (the Bournewood judgment, App 45508/99 5 October 2004). Still the Act provided no answers.


Following the judgment of the European Court, the Department of Health issued interim guidance titled Advice on the Decision of the European Court of Human Rights in the Case of HL v UK. In March 2005, the department issued the consultation paper The approach to be taken in response to the judgment of the ECHR in the Bournewood Case.


It stated that it wished to implement 'safeguards' for incapable persons not subject to mental health legislation as soon as possible, and expected to come to its policy conclusions by September 2005. At the time of writing, no concluded guidance or legislative proposals have emerged, and questions remain as to the operation of the Act when it does not close this important gap.


Fenella Morris is a barrister at 39 Essex Street Chambers and is regularly instructed in cases involving the health, welfare and finances of incapable adults. She is co-author of Mental Capacity Act 2005: A Guide to the New Law, published by Law Society Publishing. The book can be ordered direct from Marston Book Services, tel: 01235 465 656, at £39.95 (plus £3.50 p&p)