Some Comments on the Current Consultation about a new Code of Practice for the Mental Capacity Act

mike stone 22/04/22 Dignity Champions forum

There is currently a consultation about a draft of a new Code of Practice for the MCA:

Replies need to be submitted by 7th July.

The big changes are to 'restriction of liberty', which is not 'my thing' - but the Code will cover the entire MCA.

From my family-carer during End-of-Life-at-Home perspective, there are a few things in the draft code which I am not very happy with. For example, with my 'I might be my loved-one's Welfare Attorney' hat on, I have a problem with this section:

8.38 Where someone claims to be acting as another person’s attorney, either in relation to financial decisions or personal welfare decisions, staff are entitled to:

• ask to see the original document or a certified copy to verify it has been
registered and the person is named as an attorney

• ask to see photo ID to show proof of the identity of the person claiming to be the

• check with the OPG that the document has not be withdrawn and the attorney is
still lawfully able to act

One issue, is that I don't think there is a requirement to have photo ID to be appointed as an attorney - so suddenly being asked to produce photo ID by a 999 paramedic, when the issue was not raised during the appointment process, is problematic.

However, many - but certainly not all - family-carers and welfare attorneys would have some sort of photo ID.

The final one of those things above, is however a serious problem:

'• check with the OPG that the document has not be withdrawn and the attorney is
still lawfully able to act'

As an attorney, I (or the 'patient' if still able to do so) could inform my loved-one's GP that I was an attorney, and ditto with the local Ambulance Service. But, if my loved-one collapses, and I want to involve 999 to find out exactly what is happening clinically, then if the collapse is a cardiopulmonary arrest ( see ) then from my perspective I was appointed to make any Best-Interests decision about CPR. Which has to be done - especially if the decision is that CPR should not be started - 'immediately'.

If 999 paramedics think they don't have to follow my decision, until they have 'checked that the LPA still exists', then my authority is being thwarted. Which would leave me, forced to make a best-interests decision about whether or not to phone 999: and ideally I need 999 for their clinical expertise - but I definitely don't want 999 thwarting my decision-making authority!

I am wondering: how likely is it, that a person in the home of the patient, who hands over LPA documentation to attending 999 paramedics and says 'I'm the welfare attorney', isn't an attorney? I would have thought, very unlikely.

So, while I think it is reasonable for 999 paramedics to very-quickly scan LPA documentation to confirm that it is apparently genuine, in my view anything beyond that is UNREASONABLE and DEEPLY PROBLEMATIC FROM THE ATTORNEY'S PERSPECTIVE.

This is part of something which I perceive all-over-the-place: which I can sum up as 'the professionals believing that seeking or requiring 'an unreasonable degree of certainty in the situation' is reasonable'. It isn't - doing that is logically UNREASONABLE.

Lucy Series and I have started a Twitter hashtag for comments on the draft code: