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 pages [note]), 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, see this post here.
The report makes in many ways profoundly depressing reading. I know from personal experience both from involvement in proceedings before the Court of Protection and from training work that there are many very dedicated professionals (of all backgrounds) who are trying to implement the MCA 2005 in different settings. My work at the moment in drafting guidance on how to act as a litigation friend has brought me into contact with people whose dedication and desire to inform themselves further is proving inspirational.
I have also, however, come across (almost) as many horror stories or examples where the high ideals of the MCA 2005 are not translated into reality. We can identify many reasons for this – not least being the fact that only a year after it came into force, the world ran out of money, and proper implementation takes both time and money. One particular reason I would highlight is that, because the MCA 2005 is – for the most part – about process rather than about outcome, it can sometimes be difficult for public authorities to measure ‘success’ in terms of the implementation of the Act. After all, it is much more difficult to measure the number of ‘successful’ best interests decisions taken in relation to medical treatment than it is to measure the number of operations carried out: but each of those best interests decisions represents (or should represent) an intensely detailed examination of the circumstances of an incapacitated adult to determine what is the “choice which is right for him as a human being.” The Committee is alive to this difficulty, but described as “indefensible” the failure of this (and by extension the previous) Government to put in place any effective measures to ascertain whether the Act was actually working (see paragraph 34 of the report).
The problems in relation to the DOLS safeguards are perhaps of a different order, reflecting as they do a toxic combination of a definitional problem which has proved extraordinarily difficult to crack and a profoundly flawed piece of legislation We will, I hope, get some form of clarity as to what exactly a deprivation of liberty means when the Supreme Court hands down its decisions in the Cheshire West and P and Q cases (I understand next week), but fruitless years spent trying to explain the safeguards in and out of court mean that I am entirely in support of the proposal that we simply start again. In that process, which – sadly – cannot mesh with the Care Bill, I hope that thought can be given to how to ensure that the rights of those who fall just below the threshold of a deprivation of liberty (however that is defined) can be protected through access to advocacy and independent examination and reviews of their care.
[note: in the spirit of full disclosure, I gave oral evidence to the Committee, and also contributed to written submissions on behalf of a group of lawyers specialising in health and welfare cases, coordinated by Victoria Butler-Cole]