The House of Lords Select Committee on the Mental Capacity Act 2005 published its post-legislative scrutiny of the Act today (with easy to read version too).  The headline findings are below – apologies for the lack of analysis (I’ve got to dash to London to give a talk, appropriately enough, on ‘The Mental Capacity Act 2005 and the Problem of Power’) – but I heartily recommend that you head on over to Alex Ruck Keene’s new website on Mental Capacity Law and Policy for discussion and analysis.  And hold on to your hats, because it looks like Cheshire West will be handed down by the Supreme Court next Wednesday (19th).

On the principles of the Mental Capacity Act

‘The Mental Capacity Act was a visionary piece of legislation for its time, which marked a turning point in the statutory rights of people who may lack capacity— whether for reasons of learning disability, autism spectrum disorders, senile dementia, brain injury or temporary impairment.’

On the implementation of the Mental Capacity Act

‘Our findings suggest that the Act, in the main, continues to be held in high regard. However, its implementation has not met the expectations that it rightly raised. The Act has suffered from a lack of awareness and a lack of understanding. For many who are expected to comply with the Act it appears to be an optional add-on, far from being central to their working lives. The evidence presented to us concerns the health and social care sectors principally. In those sectors the prevailing cultures of paternalism (in health) and risk-aversion (in social care) have prevented the Act from becoming widely known or embedded. The empowering ethos has not been delivered. The rights conferred by the Act have not been widely realised. The duties imposed by the Act are not widely followed.’

Recommendation for a central independent body to have oversight of its implementation

‘One reason for the Act’s patchy implementation is that there is no central ownership of the Act. There are many bodies involved in its implementation but no single body has responsibility for it. It is the priority of none… Our principal recommendation to address the failure to embed the Act in every day practice is that responsibility for oversight of its implementation should be given to a single independent body.This body could be free standing or located within an existing organisation. Its role would be to oversee, monitor and drive forward the implementation of the Act.’

‘The former Mental Health Act Commission strikes us as an effective, cost-efficient and credible model from which lessons may be learned.’

Scrapping the deprivation of liberty safeguards

‘The provisions are poorly drafted, overly complex and bear no relationship to the language and ethos of the Mental Capacity Act. The safeguards are not well understood and are poorly implemented. Evidence suggested that thousands, if not tens of thousands, of individuals are being deprived of their liberty without the protection of the law, and therefore without the safeguards which Parliament intended. Worse still, far from being used to protect individuals and their rights, they are sometimes used to oppress individuals, and to force upon them decisions made by others without reference to the wishes and feelings of the person concerned…

‘The only appropriate recommendation in the face of such criticism is to start again. We therefore recommend a comprehensive review of the Deprivation of Liberty Safeguards with a view to replacing them with provisions that are compatible in style and ethos to the rest of the Mental Capacity Act.’

Additional recommendations:

  • Agreement that a statutory definition of ‘deprivation of liberty’ cannot be given.
  • The role of Relevant Person’s Representative should be strengthened.
  • There should be effective oversight of supervisory bodies (yes!!!).
  • Supported living should be included in replacement safeguards (yes!!!).
  • A new ‘Bournewood gap’ has been created by the entanglement of the Mental Health Act and the DoLS (see this post for explanation) and needs addressing.

On Independent Mental Capacity Advocates

‘We recommend that local authorities use their discretionary powers to appoint IMCAs more widely than is currently the case. To support this, we recommend the Government issue guidance to local authorities and health service commissioners about the benefits of wider and earlier use of IMCA services. We believe the costs of greater IMCA involvement should be balanced against the resources required in lengthy disputes or ultimately in litigation.
(paragraph 176).’

The IMCA role ‘requires further professionalisation’, the Committee suggests national standards and mandatory training.  They also recommend the creation of a self-referral mechanism ‘to prevent the damaging delay that occurred in the case of Mr Steven Neary.’

On the Court of Protection

‘We recommend the Government consider increasing the staff complement of authorised officers, following consultation with the Court of Protection, to achieve a significant reduction in the time taken to deal with non-contentious property and financial affairs cases.’

‘We also recommend that the Government consider as a matter of urgency the updating of the Rules of the Court, as recommended by the ad hoc Rules Committee and, as necessary, in light of subsequent changes.’

‘We believe that the reputation of the Court will improve with greater transparency… We recommend that the Government consider enabling the Court to address the needs of its audiences either by giving it greater control of the information provided on or by enabling the Court to have a dedicated website.’

‘While we have sympathy with concerns raised regarding access and delay, we believe that the replacement of the Court with a new tribunal system would risk the loss of expertise and potentially increase costs in the system. We therefore conclude that a new tribunal system would not be the best way to address these concerns.’

On being able to challenge decisions

‘We are concerned that the responsibility of public authorities to initiate proceedings in cases of dispute is not widely known or adhered to. We also share the concerns of Professor Fennell and Dr Series regarding the ability of the person concerned to challenge decision-making when all others are in agreement…  We recommend that the Government, and in future the independent oversight body, provide clearer guidance to public authorities regarding which disputes under the Act must be proactively referred to the Court by local authorities. This should include situations in which it is the person who is alleged to lack capacity who disagrees with the proposed course of action.’


On legal aid

‘We note the pressures on legal aid, but we are concerned by the inconsistent provision of non-means tested legal aid for cases concerning a deprivation of liberty, including those where there is a dispute over whether a deprivation is taking place… We are concerned by reports that those found to lack litigation capacity are prevented from bringing proceedings due to a lack of legal aid.. We are particularly concerned that individuals whom the Court of Protection has asked the Official Solicitor to represent are being refused representation on the grounds of ineligibility for legal aid.’

‘We further recommend that the Government review the policy underlying the availability of legal aid for those who lack the mental capacity to litigate and therefore cannot represent themselves. For such people, denial of legal aid may result in having no access to Court. No-one who is found to lack the mental capacity to litigate should be denied access to Court solely because they do not have the means to pay for representation.’

The Official Solicitor

‘We recommend that the Government reconsider the provision of resources to the Official Solicitor, with a view to determining whether some cases merit the same unconditional support as is currently afforded to medical treatment decisions.’

On Lasting Powers of Attorney and Advance Decisions.

Various recommendations to improve public awareness and enhance take up.

On the offence of wilful ill-treatment or neglect of a person lacking capacity

‘We recommend that the Government initiate a review of whether the offence in section 44 of the Act meets the test of legal certainty; and if it does not,to bring forward new legislative provisions.’

On the compatibility of the Mental Capacity Act with the UN Convention on the Rights of Persons with Disabilities

‘We have not sought to review the compatibility of the Act with the Convention, although we understand that the Government has commissioned such an assessment, and we await its outcome.  Given the time frame of the UN Committee’s consultation and the Government’s own assessment, it is reasonable to conclude that the position of the Mental Capacity Act in relation to the Convention is not entirely clear at this time. It would not be prudent therefore for this Committee to make specific recommendations concerning the Act’s compatibility or otherwise with the Convention, and any legislative changes that may or may not be necessary. However, we have received evidence of how the use of the Act in practice could be better aligned with the Convention, and we refer to that where relevant. Although the issue of compatibility cannot be resolved at present it will be relevant in future, and we have therefore taken the view that better alignment in practice should be regarded as a reasonable aim.’

A few scattered thoughts…

The Committee’s recommendations – especially that the DoLS be scrapped and a new public body, modelled on the Mental Health Act Commission, have oversight of the Act – could be very powerful indeed.  But these recommendations, along with the suggestion to give additional resources to the Court of Protection, the Official Solicitor and legal aid, overhauling the rules (which requires civil service and Court staff resources), and additional use of IMCAs, will require resources.  Will those resources be forthcoming?  I hope so, but I suspect this will depend on public pressure to implement these recommendations.  Several media outlets have covered the report  – even the Guardian (!) has finally covered the issues around the DoLS, (although it’s only a Press Association piece).  But the Mail (‘Prisoners of care homes’) and the Independent (‘The great mental health betrayal) have it as front page news.  An image of the Mail front page is here and the Indy here; apologies if you read an earlier rant about the story being buried in the back pages – it isn’t that visible on their websites, but then I walked past a news stand…

If the DoLS are to be scrapped, this will require primary legislation.  I hope I hope I hope that this isn’t rushed through, and the government takes time to learn why the DoLS didn’t work – but also where they did.  Although the Committee kicked the CRPD issues into the long grass (this could have been a whole separate inquiry), this could also be an opportunity to push for more formal recognition of supported decision making, perhaps modelled along the lines of the Irish Bill.  Unfortunately, there is very limited awareness of these systems in the UK (even among academics and NGOs), yet with so many supporters among family and friends complaining that their role is not recognised, that they are excluded from decisions, I suspect their could be an appetite for such systems if they were better understood.

I have to run and catch a train…  but more thoughts on the report to follow when I’ve digested it fully.  And if you got an email alerting you to this post and then found it had vanished – I’m wondering where my first post went too!


5 thoughts on “Blimey

  1. What surprised me most, as a Social Worker and BIA, was that out of all of this it was everyone BUT the government that ended up being blamed for this. Apparently it is all the fault of social workers and care homes. Perhaps I just see what is around me locally but Social Services seems to be trying quite hard to make sure the MCA is part of everything they do and the issues of DOLS are taken very seriously indeed.

    But for Parliament and the government to come out of this without a scratch is not at all right. They were warned before the implementation of DOLS, and ever since, how poor and unwieldy it was and the DoH, after years of denial, should be sticking up their hands and taking responsibility for an impenetrably drafted piece of law that has failed the public and practitioners.

    • Hi Tim,

      Thanks very much for your comment. Hmm… I’m not sure I read the report as the government getting off lightly, it’s pretty critical of the drafting of the DoLS, the lack of initiative from various departments to monitor the MCA and the DoLS and take responsibility for it’s implementation. It’s pretty critical of the early closure of the DOLS implementation program in the DH, decisions on legal aid, the lack of funds for the COP and the OS, the views expressed by Ministers that there wasn’t a problem… It’ll be interesting to see what the government’s response is!

  2. Pingback: HoLMCA: What the Recommendations mean for my clients | Jess Flanagan: Legally Blog

  3. It’s unfortunate that the committee lumped social work in with social care. Social work has been the professional group most receptive to the MCA, which dovetails closely with its core values, but social workers within social care are a small minority in risk-averse, cost-conscious organisations which are inclined to cut corners – and I’m sure that, 7 years in, non-compliance has much less to do with ignorance than with deliberate corner-cutting in the knowledge that monitoring and sanctions are almost entirely absent.

    I agree with Lucy, though, that the government comes very badly out of the report. It isn’t so much what it hasn’t done, which could be excused to some extent by lack of resources and the competing demands of NHS reorganisation and the Care Bill, but by the complacency and at times lack of knowledge displayed by officials and Ministers in the hearings, which their Lordships clearly saw through.

    However, this complacency can again not be ascribed to genuine ignorance. In respect of DoLS at least, officials and Ministers have had plenty of warnings right from the beginning – the committee’s conclusions are pretty much the same as those in a Parliamentary Briefing I wrote for BASW in November 2006 – but since the DoLS Implementation Team was disbanded in 2011 they have chosen either to turn a deaf ear or to try to shoot the messengers.

    I suspect that the real reason for this is that they have preferred to deny the problems because they no longer have any in-house capacity to do anything about them, and for this reason I think that the commentators who are now forecasting the imminent demise of DoLS may be premature. My expectation is that the government will offer only a range of palliative measures – simpler forms, redraft of the Code, and a commitment to “look at” the extension of the scheme to supported living – but will struggle to deliver even those given the lack of capacity, and that the scheme will stagger on for a few more years until it finally collapses under the weight of caselaw.

    Roger Hargreaves

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