The House of Lords Select Committee on the Mental Capacity Act 2005 was published this morning. This is the Act that governs how to assess if a patient has capacity to take decisions, for example whether to consent to medical treatment, or whether to agree to a proposed home care package. It also sets out how healthcare bodies and professionals should take decisions for patients where they lack such capacity. It includes a regime - the Deprivation of Liberty Safeguards, or DOLS - which controls how patients without capacity may be controlled or restrained, or prevented from leaving a health or care setting, for their own safety. It is the basis of hearings in the Court of Protection, which many commissioners have been drawn into in recent years.
The Committee has been reviewing the way in which the Act works in practice for many months. Laura Jolley, a senior solicitor in our Cambridge office, was part of a group of leading practitioners which submitted a paper to the Committee, as was reported in the Independent.
The report praises the Act as a "visionary" piece of legislation but it is highly critical of the way in which it has been implemented. In the health sector, it blames a "prevailing culture of paternalism" for preventing the Act becoming widely known or implemented. In our experience, staff in many healthcare organisations have
a good, detailed understanding of the Act and implement it effectively on a daily basis, often in very difficult circumstances. Sadly, that is not the case everywhere, as the report makes clear.
The Committee makes two primary recommendations. First, that there should be a single body tasked with overseeing the implementation of the Act. This could be an existing organisation or an entirely new one.
Their second main recommendation is that the DOLS regime should be scrapped and re-written. Having grappled with the DOLS regime many times, I would share the concerns of the Committee that the legislation is difficult to understand or to implement. The report includes a wonderful quote from the Vice-President of the Court of Protection that the experience of writing a judgment on the safeguards leaves judges feeling “as if you have been in a washing machine and spin dryer”.
As ever with a report of this nature, the question is "what now?" Will the recommendations be acted on? Or does the long grass beckon? Is there the appetite within government for setting up another public body to oversee the Act? If the decision is taken to ask an existing body to fulfil this role, what are the chances of them being given the funds to take meaningful action? We will let you know about the government's response to the report once it is published.