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:
- 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.
- SCIE will conduct a review of the available guidance. Depending on what they find, the government may consider revisions to the main MCA Code.
- The government is going to commission a summary of MCA case law (yes!).
- 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.
- 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.