A while back I brought you news that Liberty had written to the Joint Committee on Human Rights and called for an inquiry into the Mental Capacity Act and the DOLS. Not so long after that Baroness Browning (who was heavily involved in campaigning on the original Bournewood case) expressed concern about the way that the MCA ‘is virtually ignored by many professionals who not only do not advise people of their rights under the Act but just ignore it.’ She concluded ‘If ever a piece of legislation cried out for post-legislative scrutiny, it is this Act of Parliament.’ A short time later she drew attention to the problems with the DOLS and stated that she would personally write to the JCHR suggesting they conduct an inquiry. I haven’t seen any developments from the JCHR since Liberty’s letter (disclosure: I’ve written to them twice on this topic and, disappointingly, haven’t even received an acknowledgement of my email…). However, the House of Lords has sprung into action, and announced ‘the appointment of an ad hoc post-legislative scrutiny committee to examine the Mental Capacity Act 2005, to report before the end of the 2013-14 Session.’ To be precise, they are concerned about whether the MCA is human rights compliant, despite the insistence of the Ministry of Justice and the Department of Health that it is:
54. The Government’s post-legislative memorandum suggested that the legislation was working well other than in a few “small and technical” areas. This view was broadly upheld in 2010 by the Public Guardian’s evidence to the Justice Committee. Since that date concerns have been expressed that the procedural safeguards in the Act may be inadequate to satisfy the requirements of the Human Rights Act 1998. The Mental Capacity Act was amended in the light of the Bournewood judgment which found the UK in breach of Article 5 of the ECHR. The recent findings about the treatment of residents at the Winterbourne View care home, together with a recent Mencap report highlighting deficiencies in the care of mentally disordered patients, suggest that the legislative regime for mentally incapacitated adults would merit scrutiny by a House of Lords post-legislative scrutiny committee. Such scrutiny could include consideration of external oversight of the decisions made on behalf of incapacitated individuals by medical professionals and guidelines on “best interests” decisions, where social workers and others have taken over decision-making in areas such as personal welfare, type of care or financial affairs on someone else’s behalf.
You might also be interested to read this recent exchange about the DOLS before the House of Commons Health Committee. I think Rosie Cooper asks a very good question about why we are so tolerant of de facto detention by the medical and social care professions, so long as there is no malicious intention, when we would not be so tolerant of well intentioned de facto detention by, say, the police. There was also discussion of the vagaries of the meaning of deprivation of liberty (what does ‘deprivation of liberty’ mean, asks an MP – ‘what an interesting question’, responds the representative of the Royal College of Psychiatrists), the forthcoming Cheshire case, reminiscences for the good work by the disbanded DOLS team at the Department of Health, expressed concern about the lack of safeguards in supported living (including a rather out of touch suggestion that everybody in supported living will have had capacity to make a tenancy…). In my view the problems with the appeal mechanism and variability in application of the DOLS weren’t really drummed home enough, but it’s a start – and hopefully this House of Lords scrutiny will be an opportunity to air such concerns.
Thanks very much to Roger H for bringing the House of Lords and Health Committee news to my attention.