I am still slightly reeling from the House of Lords Select Committee’s report on the Mental Capacity Act. I think I’d grown so used to prevarications and question dodging about the MCA and the deprivation of liberty safeguards (DoLS) by the powers that be that I’d not really considered what it would look like if a group of serious minded individuals took a long hard look at the evidence. Now we know.
A few years ago I went out for dinner with two remarkable women with long careers in the NGO sector and human rights; the mother of one of the women knew somebody who had been deprived of her liberty in circumstances which were an absolute travesty of the MCA and the DOLS. We discussed the problems – why, I asked, isn’t more being done, why isn’t this headline news? One of the reasons was that we all held individual jigsaw pieces, but nobody had yet put them all together to take a look at the broader picture. Another, I suspect, was that the DoLS were so complicated, a lot of people felt cautious of wading in and publicly saying what they thought about them. Another issue is that the people directly affected by these problems were largely ‘scandalously silenced’ (as Margaret Flynn put it, so fantastically, in her evidence to the Committee). Even the professionals who were agitating about their concerns at conferences, in mailing lists, on blogs, were those on the ground, rather than those holding high profile positions. What we needed was somebody to bring together all these disparate jigsaw pieces and tell their story.
At the time, I thought this might be a body like the Joint Committee on Human Rights. In fact, I think the Select Committee’s year long inquiry has vastly exceeded what the JCHR could have achieved, and possibly even what the Equality and Human Rights Commission could have done. It has brought together evidence from a wide range of sources, with a lot of different perspectives. It has asked probing questions of those in power, and gone out to meet those on the receiving end of power. Regardless of the content of the final report, it has prompted a national discussion about the MCA – its values and its implementation. It has, I suspect, raised the profile of issues like compatibility of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and the MCA, even if in the end the report didn’t dwell on this.
Regarding the DoLS and the implementation of the MCA, the report pulled no punches. The Committee just got it, and cut through the crap and excuses about the weaknesses in the appeal mechanism, the lack of coverage of supported living, the issues around legal aid and the risk of conflicts of interest and lack of monitoring of the supervisory body. Some might disagree with their conclusion on whether we need a statutory definition of deprivation of liberty and whether a tribunal would be a better appeal destination (for me, the jury’s still out on both counts – on a statutory definition a lot will depend on what the Supreme Court says next week in Cheshire, and on the tribunal question I don’t think we know enough yet about how the Court of Protection manages DoLS appeals). I was also especially pleased that the Committee emphasised that in replacing the DoLS, ‘The model of widespread consultation that preceded the Mental Capacity Act itself should be followed, with adequate time allowed for effective Parliamentary scrutiny.’ That last thing we need is another rushed and botched job. My suspicion is that whilst there is almost uniform agreement that the DoLS are flawed, there may be considerable disagreements over what should replace them.
The suggestion that there should be a national body with oversight of the MCA is a stroke of genius. I suspect Lord Patel’s hand in this, as he was the former chair of the Mental Health Act Commission (MHAC), which the Committee says ‘strikes us as an effective, cost-efficient and credible model from which lessons may be learned.’ One of the key issues identified by the report was the lack of ‘ownership’ for implementation, and the lack of any central body responsible for disseminating information about the Act. Wouldn’t it be amazing if professionals and families had a clear destination to take their questions and concerns about the Act to? Who could publish good practice guidance. Who could disseminate information about developments in case law. Who could start thinking about issues like the compatibility of the MCA and the CRPD and looking at what is happening overseas? In short, who could take the work of the Committee forwards. A lot will depend on the composition of this body, and again, I was really pleased to see that Committee explicitly state that it should not only be the usual suspects – professionals and lawyers – but also ‘representation from those directly affected by the Act as well as their families and carers’. A key task of that body should be to try to harness the voices of those directly affected by the Act, just as the MHAC has been doing for people affected by the Mental Health Act.
The recommendations regarding increasing resources for the Court of Protection and the Official Solicitor will be very welcome, I’m sure, for those working in those fields, as will the recommendations on legal aid. Having seen how hard the staff at the Court of Protection work, I am sure it must be extremely frustrating for them that a perception still lingers in some places that delays are caused by inefficiency rather than lack of resources. There is a suggestion – endorsed by the judiciary giving evidence to the Committee – that the Court of Protection Rules 2007 be revisited. I noticed that the House of Commons Justice Committee are holding a one-off session on the Court of Protection next Tuesday, to be attended by Sir James Munby and Mr Justice Charles, the President and Vice-President of the Court of Protection respectively. I imagine this report will be under discussion there.
One observation I noticed in the report was that of all the (nearly 2000 pages of) evidence the Committee received, very little of it dwelt on transparency (paragraph 213). This might be a concern of the media – in part because they do have a genuine part to play as a constitutional watchdog, but also – I rather cynically suspect – because some elements of the media spy a rich seam of newspaper-selling stories about personal calamities and family-vs-state disputes. It is also a concern of the judiciary – understandably, since they are no doubt exasperated by the often inaccurate portrayal of the Court and its work. And it is also a concern of researchers like myself, who want to be able to find out more about the Court’s work. But at the end of the day, what matters to most people is the decisions being made under the MCA and being able to access justice when problems arise.
And finally… the principles of the MCA. The Committee described the MCA as ‘a visionary piece of legislation for its time’, which it undeniably was. It is also very clear from the evidence that the vast majority of people hold the Act’s principles in high regard, even if they have concerns about it’s implementation. The Committee itself stated at the outset:
The Act signified a step change in the legal rights afforded to those who may lack capacity, with the potential to transform the lives of many. That was the aspiration, and we endorse it.
I truly do understand why people like the principles of the MCA. The ‘mental capacity’ rather than status approach signifies a ladder which people – like Mr C, Ms B, Mrs KK and Ms JB – can sometimes use to clamber out of a place with their views no longer held sway. These stories hold a very important place in our imagination, and the MCA’s claims to empower. The problem (as I see it) though, is that this ladder is rather rickety, easily pulled up by those at the top and rather uncomfortable to climb. It is empowerment that is in the gift of those assessing capacity, and a gift that can all too easily be withdrawn. The concept of mental incapacity is far too arbitrary, and therefore antithetical to the rule of law. Meanwhile whilst there is much to be lauded in the best interests approach, especially the focus on (as Lady Hale put it in Aintree) seeing things from the other person’s point of view, this point of view can still too easily be overridden. Even some judgments appear not to engage with this subjective element of the test (Nell Munro recently wrote a great journal article about this, with easy to read version here). Approaches elsewhere give a much more explicit priority to a person’s subjective preferences than the MCA does.
The Committee do cite evidence in several places suggesting that the spirit of the CRPD should be read into both the assessment of mental capacity and the best interests process, but they don’t engage with suggestions that the Act should be revised to incorporate formal recognition of supports for decision making. The Committee endorsed supported decision making, but didn’t refer to any of the ways in which it has been more deeply embedded in other countries. This is, I suspect, because supported decision making is generally very poorly understood by UK-based NGOs and professionals; we haven’t had a campaign like that waged in Ireland to raise awareness of systems like thoes in use in Canada and elsewhere. I think this is a shame, but it might be something a public body with oversight of the MCA could take forwards in the future. The report is a nudge in the right direction, as the Mental Disability Advocacy Centre commented, but there’s a lot of work yet to be done.
Given the problems with the implementation of the MCA, it’s enduring popularity as a piece of legislation stands in need of some explanation. One of my long-held suspicions about the MCA is that it functions like a Rorschach Test – we all project onto it what we want to see. The principles are very flexible: one man’s capacity is another man’s incapacity; one man’s best interests is not another’s. The difficulty here is that this means we might all agree that the principles are ‘good’, yet disagree profoundly about what this means in practice in a particular case. Whilst there is no doubt widespread non-compliance with the procedures required by the MCA, I suspect that part of the unanimous concerns about poor implementation may in fact be pointing towards more fundamental disputes about how these principles should be interpreted. One man’s good practice is another’s poor interpretation. The report bears traces of this paradox: on the one hand it is concerned that the Act is being applied in a paternalistic and risk averse ways, on the other hand there are concerns that people’s capacity is not being questioned enough and people are being left in vulnerable situations. For this reason, I think the Committee’s idea of ‘measuring public and professional attitudes to issues of capacity, in order to be able effectively to measure any change in the prevailing culture’ is an interesting one. It might help to explore some of these rifts in interpretation and approach and bring them to the surface.
Tony Benn died today, a great champion of democracy and democratic process. Two quotes of his stood out to me as symbolic of the process this report represents. The first – ‘Democracy is not just voting every 5 years and watching Big Brother in between and wondering why nothing happens’. This process, this gathering of evidence and asking questions, is an important part of a functioning democracy. The second are his famous five questions to ask the powerful; these are questions which I think go right to the heart of the issues around power under the MCA and the DOLS:
“What power have you got? Where did you get it from? In whose interests do you exercise it? To whom are you accountable? And how can we get rid of you?” If you cannot get rid of the people who govern you, you do not live in a democratic system.”
These are questions we do not ask enough about those exercising power under the MCA – especially the last two. But this report asked them.