We reported in our June 2013 newsletter that a Committee had been appointed to “consider and report on” the MCA 2005. A formal call for evidence was published on 26 June 2013 by the Chairman of the Committee Lord Hardie, in the form of 27 questions. Written evidence should be submitted to arrive no later than 2 September 2013 to holmentalcapacityco@parliament.uk or to Judith Brooke, Clerk, Committee on the Mental Capacity Act 2005, Committee Office, House of Lords, London SW1A 0PW.

It is possible to follow the progress of the Committee’s work on the dedicated web page. Below is an overview of the key aspects of the evidence to date and the general directions in which the Committee have been focusing their questioning. Of necessity, it can serve as a sample only: the full (uncorrected) transcripts of evidence are available online.

On 18 June 2013, the Committee heard evidence from:

  • John Hall, Deputy Director of Family Justice, MoJ
  • Nick Goodwin, Deputy Director of Court Tribunal Fees, MoJ
  • Anne-Marie Hamilton, Director of the Social Care Quality and Safety Branch, Department of Health
  • Claire Crawley, Senior Policy Manager, Adult Safeguarding, DoH

On 25 June 2013, the Committee heard evidence from:

  • Nicola Mackintosh, Principal Solicitor at Mackintosh Law and member of the Law Society’s Mental Health and Disability Committee
  • Katie Johnston, Liberty
  •  Professor Richard Jones, Cardiff Law School
  • Kirsty Keywood, University of Manchester

The extent to which the Act has been embedded: The general consensus from the government officials giving evidence on 18 June 2013 was that the MCA 2005 has been a success and that, while there remains work to be done to implement and embed the Act across the system, progress has been made. For example, Claire Crawley acknowledged that some front line staff may need more assistance in understanding the concept behind the Act given the cultural shift the Act represents, but described awareness among relevant professionals as variable but growing.

It was quite clear that the government officials’ perspective as to the extent to which the Act had been successfully embedded was more optimistic than that held by the practitioner/academic witnesses who followed with their evidence of 25 June 2013. Professor Richard Jones, for example, stated that the Act places unrealistic expectations on lay and professional carers which results in non-implementation. Nicola Mackintosh described the Act as “a good start” but expressed concerns as to the way in which it had been implemented.

Reform and review: Nick Goodwin stated that the overall view in Government is that there is no need to fundamentally alter the Act. Changes are being contemplated in respect of the lasting power of attorney provisions but in the context of facilitating the OPG to deal with lasting power of attorney in a way that customers want, rather than to “fundamentally unpick what is behind the Act in respect of LPA.” The Code of Practice is due to be reviewed at the same time as the OPG reforms are considered. It was acknowledged by the DoH that there may be a need to review the Code after the Supreme Court decisions due this autumn as well as in light of the report of the House of Lords Committee itself.

This prompted a series of questions from Baroness Browning and Baroness McIntosh who noted that the MoJ did not appear to consider there to be any particular urgency to review the Code. When pressed, Claire Crawley emphasised that energies were being focused on putting the Code into practice rather than revising it. This was met with some scepticism by the practitioner/ academic witnesses - Katie Johnston (Liberty) stated in her evidence that there is a problem both with the implementation and with the Code itself. Further questions were put to the MoJ seeking clarification as to how the view that no changes were needed to the Act was to be reconciled with the recent high profile cases. The response from John Hall was that the DoH and MoJ are talking to each other and the advice that is being given to Ministers is “joined up”.

John Hall also confirmed that there will be a further review this year to ensure that the MCA 2005 is compliant with the United Nations Convention on the Rights of Persons with Disabilities which entered into force in May 2008. This follows from concerns which have been articulated by senior members of the Judiciary.

Use of IMCA’s: Baroness Browning queried the “patchy” use of IMCAs as identified in the most recent DoH report on the IMCA service. Claire Crawley attributed this phenomenon to the more general need to embed the Act and the fact that people often have friends or family who they prefer to use as representatives. Nicola Mackintosh expressed the view that there should be an IMCA in every single case where the person is assessed as lacking capacity and Kirsty Keywood indicated that she would support the use of IMCAs in a wider range of cases.

Lessons from high profile cases: A number of members of the Committee referred to Winterborne View and the lessons that should be derived from it. Claire Crawley expressed her absolute confidence that the CQC was getting the issue of training inspectors to identify issues in hand. Anne Marie Hamilton, also from the DoH, expressed the view that one thing that should be learned from Winterborne view was the issues that arise as a result of the management culture and the failure to put the individual at the heart of the decision making process. When asked who within the Department had responsibility for deciding that steps needed to be taken, the answer was that it lay with Ministers. When pushed as to whether guidance would be received from officials, Claire Crawley responded that with Winterborne View, no such guidance was required but accepted that in other cases officials would be involved.

Subsequent witnesses were more cautious as to the extent to which lessons had been taken on board. Nicola Mackintosh described Winterborne View as “the tip of the iceberg.”

Training: The DoH witnesses were pressed on the extent to which the training requirements in the Code are being complied with. The Committee made it clear that they wished to have a note on the extent to which new practitioners are receiving MCA 2005 training. When asked as to how Trusts are being monitored to ensure that the Act is embedded, Claire Crawley stated that the monitoring would be through the CQC rather than through the DoH. In relation to training in local authorities, Claire Crawley acknowledged that there is “no way of getting the evidence” that local authorities have appropriate training in place and that the CQC does not monitor local authorities or inspect them anymore.

Informal care: The DoH confirmed that there is no system for maintaining records of informal carers. Kirsty Keywood identified individuals who are self-funding in care homes as being particularly vulnerable and expressed the view that access to justice for informal care-givers is a real problem. It is clear that this is an area the Committee will explore further.

DOLs: Claire Crawley stated that it is not the Government’s view that Dols should be regarded as an “add on” to the Act. The Dols provisions should be regarded as empowering: “people concentrate on saying "deprivation of liberty” when what they should be concentrating on is the word “safeguards". Anne Marie Hamilton for the DoH opined that everybody operating the safeguards is using the same safeguards but there are regional variations as to the extent to which they are being applied for and used. The broad consensus of the practitioner/academic witnesses was that Dols are more problematic that the government officials appear to be acknowledging, not least because they are often not applied in light of the narrow construction given to the phrase “deprivation of liberty” by the caselaw. Professor Jones expressed the view that Dols had not been subjected to adequate Parliamentary scrutiny when passed.

When the DoH was pressed as to how it was addressing the issues identified by the CQC in its annual reports, the response was that it was the role of the CQC to share its findings but that the DoH continues to fund best practice guidance and brings together different system partners. As with training, the responses relating to the situation with local authorities was that they have statutory obligations which they should be complying with.

Interface with the MHA 1983: It was acknowledged by the witnesses that people do not understand the interface between the MCA 2005 and the MHA 1983. The DoH indicated that it has commissioned research to ascertain the understanding of the provisions and will be reviewing this, but there have been no discussions with Ministers about consolidating the Acts.

LPAs: Nick Goodwin gave evidence that slightly under 750,000 LPAs have been registered since October 2007 (or 2000 per month at current volumes). The Committee indicated that they would be seeking further evidence as to whether LPAs are working in practice (e.g. in view of the cost) and for data on the use of advance decisions. Baroness Andrews queried whether the process for applying for an LPA could be simplified – Nick Goodwin indicated that this is a work in progress and that an online tool is being developed and will be available in a few weeks’ time.

Legal Aid: When asked about the impact of LAPSO and the consultation on legal aid, the MoJ official John Hall stated that there have been no changes to the way that legal aid is available for cases in the Court of Protection. From a practitioner’s perspective, Nicola Mackintosh highlighted the difficulties with legal aid reforms in relation to the means test thresholds as well as the issues arising when a s.21A application falls subject to the effect of s.16 MCA 2005 after the DOL is authorised by the Court.

The Committee will continue to hear evidence on Tuesday 2 July 2013, and we will provide a further summary in next month’s issue.

We would urge our readers to respond to the call for evidence so that the Committee can receive as broad a picture as possible of the operation of the Act on the ground.

Statistics upon the MCA 2005

Many congratulations to Lucy Series on submitting her doctoral thesis on the MCA 2005 and the DOLS safeguards. She has very kindly agreed to share the statistical analysis that she has conducted for purposes of that thesis: it is available here, and is an absolutely invaluable snapshot of the system, drawing together information from across a whole range of sources. The data is provided in Word form so that it can be used freely, subject (of course) to acknowledgment of it source.

As Lucy notes:

“[t]he overall picture painted by these data is of an Act whose primary mechanisms are informal – the vast majority of decisions are made under the general defence, and so are not picked up by data on the deprivation of liberty safeguards or the Court of Protection. The statistics show that referrals to Independent Mental Capacity Advocates (IMCA) have been lower than expected, and the number of complaints and litigation resulting from IMCA referrals is concerning low, suggesting they are only infrequently challenging decision makers or assisting P to do so. Use of thedeprivation of liberty safeguards has been underwhelming and extremely variable – it appears there is a postcode lottery in the Article 5 protections offered by the safeguards, both in terms of when they are applied, and how effectively people’s rights to advocacy and challenge are upheld. Despite fairly limited, but growing, use of the Court of Protection under the MCA for welfare decisions and the deprivation of liberty safeguards, it is clear from the comments of the judiciary and the Official Solicitor that these cases are causing a significant strain on resources.