The government – specifically the Ministry of Justice and the Department of Health – has published its response to the recommendations of the House of Lords Select Committee on the Mental Capacity Act 2005.  I’ll leave it to Community Care to provide the comment and analysis, but just wanted to flag up some of the positives from this response:

  1. The government hasn’t agreed to set up an independent oversight body, and you can see the fingerprints of the Coalition’s’ anti-quango ethos all over this one.  But it has agreed to set up a Mental Capacity Act Advisory Group, who will publish an annual ‘State of the Mental Capacity Act’ report, gather evidence and highlight priority areas.  In turn, the recently established MCA ‘Steering Group’ will be retained, to help to implement these changes.  I do hope that the MCA Steering Group will be put on a more transparent footing at some point – it would be nice to know what they’re discussing and doing, especially given they chiefly represent professionals and providers not those directly affected by the MCA.  I can’t find the minutes of their meetings online, but that would be a good start.
  2. SCIE will conduct a review of the available guidance.  Depending on what they find, the government may consider revisions to the main MCA Code.  
  3. The government is going to commission a summary of MCA case law (yes!).  
  4. Drum roll…  the government defended the deprivation of liberty safeguards and won’t agree they need wholesale reform, but it has asked the Law Commission to look into how to fix the supported living issue and also to look into lessons to be learned.  This won’t satisfy those calling for wholesale reform, but it does represent an opportunity to think about precisely what needs to be fixed.  So get thinking! And they may revise the code, depending on what the Law Commission recommends.  I can’t see how they can avoid revising the Code if they’re going to change the law, and I also think that the government can’t on the one hand complain that the problems with DoLS are a lack of understanding and on the other hand refuse to revise the guidance that is supposed to clear up those misunderstandings.  In the meantime, the Mental Health Act Code will have a chapter on the interface issues (good luck with that, whoever’s writing it!).  One of the most pressing issues is guidance on when disputes need to go to the Court of Protection, and there’s a suggestion that they’ll consider practice directions or practice guidance (honestly, I don’t think anybody except lawyers reads practice directions, so guidance would be better, or a revision to the Code, otherwise you might as well just bury it).  Oh, and they’re going to revise the forms.  That might sound trifling, but I think even that is an opportunity to not just simplify things and avoid replication, but to include a number of useful prompts.
  5. I’m rather excited about the promise to revise the Court of Protection Rules 2007 by April 2015.  This, too, is an opportunity to reflect on key issues such as personal presence and participation in proceedings, party status, litigation capacity issues, and also – selfishly – research in court.  And I’m pleased that the Court of Protection will get more funding.

Not a whole bunch about supported decision making (apart from the Care Act developments, which I’m still musing on), but I think this is something the MCA advisory group could take up.  In short, the government hasn’t agreed with all the Committee’s recommendations – but they haven’t done nothing either, and there are some interesting opportunities here if we grasp them.


2 thoughts on “Interesting…

  1. Hello. While I accept some of your points about the mixed bag of goodies and cinders in this response to the Lords Report, it has clearly been produced by someone who knows about the MCA and the MHA interface. I was pleased there was a robust statement about the good that has been done by the staff who have worked hard to implement the Safeguards, flawed as they are. Also, this is the first place where I’ve seen it clearly stated that the much vaunted ambition to simplify the Safeguards is probably hopeless wishful thinking! The forms used in England could certainly be friendlier but beyond that, since the tests in the Safeguards come from case law and the ECHR, how can they be simplified without a qualitative change? The main area of complexity is the interface with the MHA. How can this really be resolved unless the MHA is up for renegotiation too? It most certainly is not! DoLS 2 would perforce look much like DoLS 1 but it could certainly do with better PR. Some commentators have never really liked DoLS (for valid reasons, like its weaker oversight regime and the feebler review system) but have never let up reiterating some rather unfair criticisms which now seem to have lodged in the discourse. One trope is that of DoLS and a bureaucratic nightmare. DoLS isn’t actually that complex. I can explain it in terms of procedures in 40 minutes to someone who’s paying attention. Many individual parts of the MHA are much more complex than this (CTOs, the forensic sections, determining the NR anyone?). The Safeguards are also flexible enough to permit a degree of pragmatism in use lacking in the MHA. There are lots of forms and lots of paper, but that isn’t the same thing as the procedure being complex and, come on people, am I the only one who thinks that the intention behind this, an explanation of the process of reasoning behind the decision and this being shared with the person and their representative, wasn’t a conscious decision about transparency and accountability taken as a departure from the often aloof practice ethos of the MHA? (The legendary pink forms are brief, inscrutable, you don’t actually get copies of them if you are detained, you only get a crappy ‘insert name here’ leaflet and your psychiatrist is likely to block your access to your notes where you might learn more during your episode of treatment). I was very impressed with Roger Hargreaves recent response to your earlier post: as ever, bang on! I’d echo his point. What might seem to some people like ‘simplification’ could actually be ‘dilution’ making the whole exercise one in meaningless rubber stamping. A multiple choice and tick box best interest assessment? What would the point be? There are many things wrong with the Safeguards but purists and activists who want to see rights for vulnerable people being meaningfully embedded in practice need to be careful when criticizing them to check who else has joined the chorus. A lot of people who echo your criticisms are in fact no advocates for the rights agenda actually changing things for the needy and troublesome subjects of social policy.

  2. Pingback: Progress towards #JusticeforLB in #107days | #107days

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