Since our July newsletter, there have been three further oral hearings before the House of Lords Select Committee on the Mental Capacity Act.  The uncorrected oral evidence is available online.  This is a summary of the key themes addressed in the evidence at those hearings. 

On 2 July 2013 the Committee heard evidence from:

  • Toby Williamson, Head of Development and Later Life, Mental Health Foundation
  • Sue Brown, Head of Public Policy Sense
  • Dr Pauline Heslop,  Team Manager of the Confidential Inquiry into premature deaths of people with learning disabilities (CIPOLD), Bristol University
  • Dr Margaret Flynn,  Independent Consultant and former Chair of the serious case review into Winterbourne View

On 16 July 2013, the Committee heard evidence from:

  • Vanda Ridley, Communications Manager, Down’s Syndrome Association
  • Beverley Dawkins OBE, National Officer for Profound and Multiple Learning Disabilities, Mencap
  • Hannah Barnett, Head of Operations, National Autistic Society
  • George McNamara, Head of Policy and Public Affairs, Alzheimer’s Society;
  • Peter McCabe, Chief Executive, Headway
  • Paul Farmer, Chief Executive Officer, Mind

On 23 July 2013 the Committee heard evidence from:

  • Steve Gray, Director of Operations, Asist
  • Elyzabeth Hawkes, Regional Manager, POhWER
  • Jonathan Senker, Chief Executive, VoiceAbility

The extent to which the Act has been embedded:  The majority of the witnesses considered that there remains work to be done in ensuring that the Act is properly understood across all sectors that need to apply it and by the professionals involved. Toby Williamson expressed the opinion that it is better understood by specialist services. It was also noted that in big decisions (such as medical treatment), the Act is better applied than where the decisions at issue are ‘every day decisions’.  A recurrent theme was that medical professionals are, generally, less well-informed than front line staff such as social workers.  A number of witnesses commented on failings by GPs in particular.  Dr Heslop identified that whether there is good or bad practice in a given hospital is patchy – it often depends on the individual rather than the institution.

Training: A recurrent theme was that additional and better training in how to apply the Act is required and that an advice line could assist professionals confronting difficulties in applying the Act to a specific case.  A further point raised in the session on 16 July 2013 was the confusion that can arise where local authorities and/or NHS Trusts have their own guidance in addition to the Code of Practice.  A number of witnesses highlighted that family members are often not aware of the rights under the Act.  Hannah Barnett noted that there should be better training in terms of allowing people to make bad decisions rather than opting for premature intervention.

Reform and review:  There were varying views as to the extent to which the Act requires reform as opposed to better implementation, on balance many witnesses felt that the framework is solid and the issue is with it being applied.  Dr Heslop identified one specific recommendation for reform arising from the confidential inquiry into premature deaths of people with learning disabilities, namely a clarification of the definition of serious medical treatment. This was echoed by Beverley Dawkins. Elyzabeth Hawkes expressed the view that stronger language could be used in the Act in terms of when referrals are to be made – i.e. ‘must’ rather than ‘should’. A number of witnesses felt that the Code could be revised to provide greater clarity.

Fluctuating Capacity: The Committee directed questions to a number of the witnesses on how those with marginal and/or fluctuating capacity have fared under the Act.  Toby Williamson noted again that in settings where the Act is less well understood (such as care homes and General Hospitals) there has been more difficulty in addressing fluctuating capacity. Beverley Dawkins noted that there can also be issues where there is an assumption of capacity which may not have fully considered the individual’s ability to weigh up information (e.g. where there is a decision as to medical treatment).  Those with borderline capacity were felt generally to be particularly vulnerable.

Use of IMCA’s: The general consensus among the witnesses is that an increased use of IMCAs would be positive, as could an on-going role after the specific-decision has been taken.  Toby Williamson noted that even where there are family members, an IMCA should be made available as those family and friends may be very unfamiliar with complex health and social care systems. Both he and Sue Brown noted the role IMCAs can play in facilitating communication more generally and in assisting care professionals as well as the patient. Beverley Dawkins reiterated that the differential use of IMCAS across the UK is a matter of concern.

The evidence session on 23 July looked closely at the role of IMCAs (from the perspective of providers).  Elyzabeth Hawkes noted that there is currently no regulation as to qualifications and as a result, there are differences between IMCA services across the country. The broad consensus arising from the resulting discussion was that there need to be national standards rather than a national qualification. The potential benefits of joint training (with DOLS Assessors, BIA assessors and supervisory bodies) were canvassed. There was further evidence as to the challenges associated with commissioning and the increasingly restrictive arrangements in place. DOLS:  Toby Williamson expressed the view that the DOLS regime is complex, quite bureaucratic and difficult to understand. The difficulties in understanding the regime were also highlighted by a number of the witnesses from the  charity sector who also emphasised the extent to which family members do not understand the provisions.  An issue in practice that was identified by Hannah Barnett is that safeguarding is often led by the provider until a problem has occurred.  She felt that there should be greater clarity as to what is an acceptable standard (although the difficulties with fixing a benchmark were acknowledged).

The IMCA witnesses identified the difficulties associated with the rules being determined by case law and the need for clearer and better information, potentially through a revised Code. Jonathan Senker noted that the protections are high where they are engaged with but DOLS can be used as a ‘sticking plaster’ for poor community care planning.

Lessons from high profile cases: The Committee questioned the extent to which lessons about the injudicious use of restraint have been learned.  Sue Brown noted that there are instances where the use of restraint is not subject to the review processes to which it should be.

Dr Heslop and Dr Flynn gave evidence in relation to the major reports which they had respectively been involved in. Dr Heslop  identified one concern as being confusion as to who was taking the lead in best-interest decision making  – a concern shared by a number of other witnesses.

Dr Flynn commented that the work of the CQC has not given any confidence that the hospitals are safe of that people’s physical healthcare is given the priority it requires.  She expressed the view that there needed to be more ruthless regulation by the CQC which enabled time to be spent with and observing patients. She expressed the opinion that we should not lose impetus from Winterborne view to implement better practices than the schemes currently being piloted by the CQC.