Alex RKThe response to the Select Committee’s post-legislative scrutiny report has been published today (10 June) and is available here.
I reproduce here the Executive Summary, and will comment further in due course:
2. Executive summary
2.1 On the 13th March 2014, the House of Lords Select Committee on the Mental Capacity Act 2005 published the report of its ten‐month investigation. The Government is grateful to the Committee for its invaluable work. We agree with the Committee’s overall finding: that while the Mental Capacity Act (MCA) was a “visionary piece of legislation“, the Act has “suffered from a lack of awareness and a lack of understanding“.
2.2 The Government, together with our partners, have closely considered the 39 recommendations of the House of Lords together with inputs and insights received from our discussions with a wide range of stakeholders. This document presents our response and sets out a system‐wide programme of work over the coming year and beyond that we believe will realise a real improvement in implementation of the MCA.
2.3 We intend to ensure that implementation is strengthened and co‐ordinated and will consider the case for establishing a new independently chaired Mental Capacity Advisory Board. A national Board and its independent chair could also advocate for and raise awareness of the MCA, gather views on priority MCA issues and opportunities and advise the Government on key priorities for action. The Government will hold implementing partners to account, ensuring they deliver against their commitments and responsibilities.
2.4 We share the House of Lords’ concern at the lack of awareness of the MCA. Everyone has responsibility for raising awareness and every professional who works with individuals who may lack capacity should regard the responsibility to familiarise themselves with the provisions of the MCA as a basic professional duty. The Department of Health will commission a review of current guidance and tools to determine what represents the “gold standard” that can then be widely disseminated. In 2015, the Government will host a national event to both raise awareness of the Act and to hear the views of professionals and the public as to how we can further develop our programme of work.
2.5 We will take a comprehensive approach to promoting implementation. Professional training is a priority and the Government, together with Health Education England and the Royal College of General Practitioners, have identified immediate actions. NHS England and the Association of Adult Directors of Social Care (ADASS) have committed to lead on work examining the important role that commissioning has to play in encouraging a culture in keeping with the principles of the MCA. The Care Quality Commission (CQC) has prioritised the MCA in the fundamental revision of its regulation and inspection model.
2.6 The Government will ask the Law Commission to consult on and potentially draft a new legislative framework that would allow for the authorisation of a best interests deprivation of liberty in supported living arrangements. In light of this, the Law Commission will consider any improvements that might be made to the Deprivation of Liberty Safeguards (DoLS). In the short term, ADASS will lead a task group to consider the implications of the recent Supreme Court judgment on deprivation of liberty and the Government will commission a revision of the current standard forms that support the DoLS process.
2.7 The Office of the Public Guardian (OPG) is undertaking significant work to increase the level of awareness and understanding of Lasting Powers of Attorneys (LPAs) – working with NHS England to provide guidance for front‐line staff and with the CQC to make sure questions on LPAs feature in inspections of health and social care providers. HM Courts and Tribunal Service has committed to increasing the staff complement of the Court of Protection and the Government has committed to the revision of the Court of Protection Rules – with a view to having new rules in place by April 2015.
2.8 The Government believes the MCA is an Act of fundamental importance which we are committed to embedding across our work programmes. We describe early progress in respect of the Care Act 2014, the Prime Minister’s Challenge on Dementia and our responses to the failings at Winterbourne View and Mid‐Staffordshire NHS Foundation Trust.
2.9 We urge that all those with a role to play in implementing the MCA seize the opportunity provided by the House of Lords report and this Government response. If we maintain recent momentum and implement the programme of work we describe in this report we believe that we can create a culture that values every voice and respects every right of those who may lack capacity.”
The government’s response is noticeably silent in relation to compliance of the MCA with Article 12 of the UN’s Convention on the Rights of Persons with Disabilities, which the UK has ratified. Are we going to abolish the MCA’s system of substituted decision making (‘best interests’ decisions) and functional capacity assessments, as required by Art 12, or ignore it and trundle on with improving awareness and implementation of the MCA as it is? The government response suggests the latter.
I read Lucy Series et al’s discussion paper on the CRPD and went to the text of the General Comment No.1 myself and it seems abundantly clear from this that the MCA needs a complete overhaul to comply. Not just tweaking odd provisions, but abolishing the substituted decision mechanism of the ‘best interests’ test, and the current COP3 functional test of capacity, and replacing them with supported decision-making mechanisms and associated safeguards. The government were originally advised that the MCA was compliant with the Convention but in light of the UN’s General Comment, that is clearly incorrect.