About the Statistical Guide to the Mental Capacity Act 2005
The Mental Capacity Act 2005 (MCA) affects the personal and workings lives of millions of people in England and Wales. The deprivation of liberty safeguards and the Court of Protection, both established by the MCA, are frequently in the news. There are many interesting developments afoot regarding the Act – not least the forthcoming hearing of two key deprivation of liberty safeguards cases by the Supreme Court (Cheshire and P & Q) and the newly announced House of Lords ad hoc committee on the MCA. The MCA is also of growing interest at an international level as Article 12 of the UN Convention on the Rights of Persons with Disabilities (CRPD) – the right to equal recognition before the law – refocuses critical attention on mechanisms which allow a person’s own decisions to be displaced by another’s on grounds of ‘incapacity’.
The overall picture painted by these data is of an Act whose primary mechanisms are informal – the vast majority of decisions are made under the general defence, and so are not picked up by data on the deprivation of liberty safeguards or the Court of Protection. The statistics show that referrals to Independent Mental Capacity Advocates (IMCA) have been lower than expected, and the number of complaints and litigation resulting from IMCA referrals is concerningly low, suggesting they are only infrequently challenging decision makers or assisting P to do so. Use of the deprivation of liberty safeguards has been underwhelming and extremely variable – it appears there is a postcode lottery in the Article 5 protections offered by the safeguards, both in terms of when they are applied, and how effectively people’s rights to advocacy and challenge are upheld. Despite fairly limited, but growing, use of the Court of Protection under the MCA for welfare decisions and the deprivation of liberty safeguards, it is clear from the comments of the judiciary and the Official Solicitor that these cases are causing a significant strain on resources.
The document is divided into three sections: data on the Mental Capacity Act, the deprivation of liberty safeguards and the Court of Protection. Very limited data is available on the use of the ‘general defence’ under the MCA. I have collated some data on the use of welfare benefit appointeeships, Lasting Powers of Attorney, deputyships, Independent Mental Capacity Advocates and prosecutions under s44 MCA. Using the official data on the deprivation of liberty safeguards and data gathered under the FOIA, I have produced tables and figures showing – for the period 2009-2012 – the number of applications over time, variation in application rates across local authorities (including an appendix showing each local authority’s per capita application rate using population data), some data on third party referrals, Part 8 reviews and applications to the Court of Protection under s21A MCA and s16 MCA. An additional appendix shows the startling variation between local authorities’ use of s39D IMCAs under the deprivation of liberty safeguards. I have also drawn from data published in the two Court of Protection annual reports, the Official Solicitor’s annual reports and a small amount gathered under the FOIA to produce tables and figures on welfare proceedings in the Court. I reproduce some data on applications for permission, which paint a picture of who is using the welfare jurisdiction of the Court of Protection, a figure shows the growing workload of the Official Solicitor and I present some data on Court of Protection visitors.
I am afraid these data have not been peer reviewed, but if you spot any errors I would be grateful if you could bring them to my attention. If there are any data not contained here that you would find useful, please do let me know – it may be that I already hold it. I am afraid that these data focus more on the welfare side of the Mental Capacity Act, as that is what my doctoral research has focused on.