The Code of Practice and the ambiguities of 'guidance'

Abstract

Codes of Practice are a peculiarly UK phenomenon. I am aware of no other nation adopting this peculiar, quasi-legal and sort of binding mechanism as part of its mental health governance. They have been issued for both the Mental Health Act (MHA) and the Mental Capacity Act (MCA), the latter with a new annexe to explain the 2007 deprivation of liberty safeguards. So what is the Code of Practice? It is envisaged by the MHA to be for the 'guidance' of medical and other professionals caring for people with mental disorders. My argument, in short, is that law and guidance are different, and that codes of practice undermine that distinction. It is not merely that such codes fail to make clear what is required by law and what, even if good practice, is not. They can also be counterproductive by papering over the cracks of legal uncertainty, and by providing apparently 'right answers' to practical problems that may admit of a variety of approaches in different contexts. The result is that practitioners relying on the Code may misunderstand that some legal requirements are mere guidance, while some non-legal advice in the Code is binding. (PsycINFO Database Record (c) 2016 APA, all rights reserved)