Undoubtedly the most important development in the capacity field outside the Court of Protection is the report of the House of Lords Select Committee convened to conduct post-legislative scrutiny of the MCA 2005.

The House of Lords Committee appointed to consider the MCA 2005 has now reported.  After a mammoth evidence gathering exercise (the transcripts of the oral evidence received and the written evidence submitted ran to almost 2,000 pages1), the Committee has provided a damning report upon almost all aspects  of  the implementation of the MCA 2005.

In   its  143  page  report, the Committee was unanimous that the MCA 2005 is important – indeed visionary - legislation, with the potential to transform lives. However, they were equally clear that the Act is not working well, because people do not know about the Act and, where they do know about it, they do not understand it. As the Committee notes in the summary at the outset: “[f]or 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.”

The Committee reserved some of its most damning criticisms for the DOLS regime, noting that the evidence that it had heard suggests that”[t]he 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. Even if implementation could be improved, the legislation itself is flawed.”

The Committee has made a number of important recommendations to bring about the effective implementation of the Act, chief amongst them being that:

  1. overall responsibility for the Act be given to an independent body whose task will be to oversee, monitor and drive forward implementation;
  2. The DOLS regime be ripped up and the Government goes back to the drawing board to draft replacement provisions that are easy to understand and implement, and in keeping with the style and ethos of the Mental Capacity Act;
  3. The Government  works   with  regulators and the medical Royal Colleges to ensure the Act is given a higher profile in training, standard setting and inspections;
  4. The Government increases the staff resources at the Court of Protection to speed up handling of non-controversial cases;
  5. The Government reconsiders the provision of non-means tested legal aid to those who lack capacity, especially in cases of deprivation of liberty;
  6. Local authorities use their discretionary powers to appoint Independent Mental Capacity Advocates more widely than is currently the case;
  7. The Government addresses the poor levels of awareness and understanding of Lasting Powers of Attorney and advance decisions to refuse treatment among professionals in the health and social care sectors;
  8. The Government review the criminal law provision for ill-treatment or neglect of a person lacking capacity to ensure that it is fit for purpose.

The Committee also recommended that the House of Lords seek an update from the Government twelve months from now to find out what they have done in  response to  their key recommendations.

For a much longer discussion and commentary upon the report, see this post by Alex here. For an example of why we would suggest that the Government would be well-advised to look north of the Border to take the Mental Welfare Commission as a template for a ‘Mental Capacity Act Commission,’ we would recommend reading the report of the investigation into Ms E discussed in the Scotland newsletter.