The House of Lords Report 2 – a longer discussion

In this post, I seek to summarise – and where relevant – comment upon each of the Chapters in the report.   This can be no substitute for reading the report itself and the wealth of detail contained therein to support the 39 recommendations made.

Chapter 1: Introduction

The range of the evidence received by the Commission was striking: the Committee held 15 public evidence hearings at which it questioned 61 witnesses, and accepted a total of 206 written submissions as evidence.   Importantly, delegations of the Committee met those with whom the MCA 2005 is actually concerned: meeting adults with learning disabilities in a consultation facilitated by Mencap Hammersmith & Fulham and attending a special meeting of the Forget-Me-Nots, a peer support and advocacy group for people with dementia in East Kent.   Evidence gained during those meetings appears throughout the report.   The Committee also visited the Court of Protection, both to attend hearings and to meet those involved behind the scenes.

It is clear, even on the face of the report, that at least part of the task appointed the Committee has succeeded: as the Committee notes (paragraph 9) “[w]hen we began our evidence hearings the departmental officials from the Ministry of Justice and Department of Health gave a confident assessment that the Act had been “a success”, although it was conceded that it would take ‘time to embed,’” (evidence that received critical comment at the time) but by the end of the hearing process the Government had established the Mental Capacity Act Steering Group whose main purpose is “to agree a joint programme of action to continue to implement the Mental Capacity Act and the Deprivation of Liberty Safeguards,” and Lord McNally, the then-Minister of State for Justice, conceded in the last evidence session that ensuring full implementation and understanding of the Act remained a “work in progress” (paragraph 9).

The Committee highlighted in Chapter 1 the main themes of the evidence received, namely that:

(1)   With one major exception, the Act was a significant and appropriate piece of legislation with the potential to transform lives (paragraph 12);

(2)   The Act was not well implemented, the principles not being widely embedded and the processes not being widely known or adequately or consistently followed, these problems being generally more acute in the health than the social care sectors (paragraph 13);

(3)   The tension between the empowerment which the Act was designed to deliver, and the tendency of professionals to use the Act for safeguarding purposes. Prevailing professional cultures of risk aversion and paternalism have inhibited the aspiration of empowerment from being realised (paragraph 15);

(4)   The presumption of capacity is widely misunderstood: being at times used to justify non-intervention by health and social services (erroneously or, sometimes, deliberately) (paragraph 16);

(5)   A lack of consistent monitoring of the implementation of the Act (paragraph 17);

(6)    The unsatisfactory nature of the arrangements for the implementation of the Act, being divided between too many bodies with no single one having responsibility – the factor that led the Committee to its main recommendation that a single independent body be established for this purpose (paragraph 18);

(7)   Criticisms of the DOLS regime were not limited to implementation, but to the flawed nature of the legislation (paragraph 19).

Chapter 2: Background to the MCA 2005

In Chapter 2, the Committee set out a useful potted history of the background to the MCA 2005 (emphasising the extent to which it was recognised at the time by the Government that the ‘quiet revolution’ it was intended to bring in would depend upon its implementation (paragraph 26).   The Committee also summarised the evidence as to the steps actually taken to implement the Act, noting the evidence of Paul Gantley, the former national implementation manager at the Department of Health, that the implementation programme had become narrowed after 2007 to focus on the DOLS regime (paragraph 29), before coming to an end altogether in 2011 without (Mr Gantley considered) any considered assessment that the work was complete.

The Committee’s comments upon the way in which the Government intended to measure the success of the Act are particularly scathing.   The Government had stated at the time that “since the main and most widespread change we seek is a difference in how decisions are taken and delivering benefits to the wide group of vulnerable people, this is likely to involve qualitative research as well as reviewing feedback, e.g. MPs’ letters and outcomes such as statistics on court cases, complaints, reports in the media.”  However, as the Committee note (paragraph 34) “there was no evidence of how, or indeed whether, the Government sought to assess progress against the criteria identified for success,” and that it was unclear whether the Government had actually taken any measures to ascertain whether the Act had met the criteria.   The Committee found this to be “indefensible,” recommending as a matter of urgency that steps be taken to establish regular and dedicated monitoring of implementation of the Act, and that this should include all the sectors across which the Act applies.  The Committee recommended that an independent body be given responsibility for ensuring that such monitoring takes place (paragraphs 35-6).    The Committee also recommended that the same body be given responsibility for monitoring in a robust fashion whether and how public and professional attitudes to capacity have changed, so as to be able effectively to measure any change in the prevailing culture – that, the Committee noted, should have started prior to the implementation of the Act, but there would still be benefits in starting such an exercise now (paragraph 39).

Chapter 3: The five core principles: is the Act working as intended?

In Chapter 3, the Committee examined in more detail the reasons why implementation is lagging behind the legislation, first setting out the backdrop, which they summarise as “[t]he declining confidence in the standards of care, the very recent structural changes in the commissioning and delivery of health and social care, the growing pressure on services from an ageing population, and the impact of austerity on the public and voluntary sectors” (paragraph 50).

The Committee noted the CRPD, and the draft general comment on Article 12.  However, the Committee (perhaps contrary to the hopes of some) did not seek to review the compatibility of the Act with the Convention (although it noted that the Government has commissioned such an assessment):

At paragraph 53, the Committee noted that:

Given the time frame of the UN Committee’s consultation and the Government’s own assessment, it is reasonable to conclude that the position of the Mental Capacity Act in relation to the Convention is not entirely clear at this time. It would not be prudent therefore for this Committee to make specific recommendations concerning the Act’s compatibility or otherwise with the Convention, and any legislative changes that may or may not be necessary.  However, we have received evidence of how the use of the Act in practice could be better aligned with the Convention, and we refer to that where relevant. Although the issue of compatibility cannot be resolved at present it will be relevant in future, and we have therefore taken the view that better alignment in practice should be regarded as a reasonable aim.”

The Committee then turned to examine each of the principles in the Act, analysing the extent to which the evidence received suggested that they had (or rather, had not) been embedded in professional culture. Having summarised in considerable detail the evidence received, the Committee concluded in this regard that:

103.  We acknowledge the wide-spread support which the Act enjoys among stakeholders. It is described in unusually enthusiastic language. It is disappointing therefore that the implementation of the Act has yet to receive the same acclaim.

104. The empowering ethos of the Act has not been widely implemented.  Our evidence suggests that capacity is not always assumed when it should be. Capacity assessments are not often carried out; when they are, the quality is often poor. Supported decision-making, and the adjustments required to enable it, are not well embedded. The concept of unwise decision-making faces institutional obstruction due to prevailing cultures of risk-aversion and paternalism. Best interests decision-making is often not undertaken in the way set out in the Act: the wishes, thoughts and feelings of P are not routinely prioritised. Instead, clinical judgments or resource-led decision-making predominate. The least restrictive option is not routinely or adequately considered. This lack of empowerment for those affected by the Act is underlined by the fact that many responsible for its implementation continue to consider it as part of the safeguarding agenda.

105. The presumption of capacity, in particular, is widely misunderstood by those involved in care. It is sometimes used to support non-intervention or poor care, leaving vulnerable adults exposed to risk of harm. In some cases this is because professionals struggle to understand how to apply the principle in practice. In other cases, the evidence suggests the principle has been deliberately misappropriated to avoid taking responsibility for a vulnerable adult.

106. The rights and responsibilities of the different stakeholders which are properly conferred under the Act are largely unknown. This makes the effective exercise of those rights, and the proper discharge of those responsibilities almost impossible.

107. The general lack of awareness of the provisions of the Act has allowed prevailing professional practices to continue unchallenged, and allowed decision-making to be dominated by professionals, without the required input from families and carers about P’s wishes and feelings.

108. A fundamental change of attitudes among professionals is needed in order to move from protection and paternalism to enablement and empowerment. Professionals need to be aware of their responsibilities under the Act, just as families need to be aware of their rights under it. […]

109. In the first instance we recommend that the Government address as a matter of urgency the issue of low awareness among those affected, their families and carers, professionals and the wider public.

110. We reiterate that our findings on the implementation of the core principles concern the operation of the Act principally in health and social care settings. We have very little evidence on the use of the core principles in other sectors. However, given the poor levels of knowledge and understanding in the sectors on which the Government targeted its implementation programme, we have no reason to believe that the Act is operating well in other areas. We recommend the Government consider urgently the need for assessing usage of the core principles across the range of decisions affecting people lacking capacity, including in sectors such as banking and policing.”

For my part, the most striking feature of the evidence received by the Committee was the repeated theme that proper application of the Act requires a level not just of professional knowledge of its terms, but of commitment of time to consideration of the individual under scrutiny.  :This is something that applies not just to the making of best interests decisions (where I was pleased to note that the Committee picked upon the dicta of Baroness Hale in Aintree about the proper purpose of the best interests test) but also in relation to the application of the presumption of capacity and the conducting of capacity assessments.   Of course, all must be calibrated to the urgency of the situation, but this section of the Committee’s report brings vividly to life how the power of the Act lends itself to misuse (even of the benign paternalistic type) if the individual is not at the heart of the processes.

Chapter 4: Addressing poor implementation of the Act

The Committee then turned to examining who had responsibility for the Act now the Government’s implementation programme had ceased, concluding that no-one had specific or overall responsibility for it.   The Committee noted the wide range of bodies with varying levels of responsibility for implementation and enforcement, ranging from the CQC to professional regulators for health and social care professions.    The Committee therefore held found that:

113.  Despite the many organisations involved in implementing the Act, it appears that no single body has overall responsibility for it. This may help to explain the patchy implementation of the Act. Without central ownership and co-ordination of implementation, the very positive benefits of the legislation will not be realised. A permanent, proactive, dedicated and independent resource with responsibility for promoting awareness, understanding and good practice across affected sectors is needed to ensure a step change.

114. We recommend that overall responsibility for implementation of the Mental Capacity Act be given to a single independent body. This does not remove ultimate accountability for its successful implementation from Ministers, but it would locate within a single independent body the responsibility for oversight, co-ordination and monitoring of implementation activity across sectors, which is currently lacking. This new responsibility could be located within a new or an existing body. The new independent body would make an annual report to Parliament on the progress of its activities.

115. The proposed independent oversight body would not act as a regulator or inspectorate, but it would work closely with such bodies which have those responsibilities in relation to the Mental Capacity Act. The body should act as a support to professionals required to implement the Act.

116. The composition of the new independent body should reflect the professional fields within which the Act applies, and it should contain professional expertise. It should also include representation from those directly affected by the Act as well as their families and carers. This is vital to ensure credibility. Other key features of the independent body will be continuity, expertise, accountability and accessibility.

117. The Mental Capacity Act Steering Group is a welcome first step in this direction, and we recommend that it be tasked with considering in detail the composition and structure of the independent oversight body, and where this responsibility would best be located. The former Mental Health Act Commission strikes us as an effective, cost-efficient and credible model from which lessons may be learned.”

I would pause there to note that we have not just the former MHAC but also the – very current – Mental Welfare Commission for Scotland which could serve as a model.

The Committee then turned to consider bodies with oversight, starting with the CQC, which it found (paragraph 126) “has not used its existing powers to best effect to ensure that the requirements of the Mental Capacity Act are met in practice.”  The Committee recommended (paragraph 127) that the standards against which the CQC inspects “should explicitly incorporate compliance with the Mental Capacity Act, as a core requirement that must be met by all health and care providers.”   Importantly, to my mind, the Committee recognised that “[m]eeting the requirements of the empowering ethos of the Act, and especially in terms of actively enabling supported decision-making, must be given equal status with the appropriate use of the deprivation of liberty safeguards, or their replacement provisions.”

Looking at the professional regulators and medical Royal Colleges, the Committee, again, found that they had been wanting to date, noting that (with the exception of the Royal College of Psychiatrists) they “were not convinced that the Mental Capacity Act was a priority for any of these bodies and this was reflected in the evidence” (paragraph 128).   The Committee made a series of detailed recommendations (at paragraphs 137-142) as to steps that these bodies needed to do to fulfil their responsibility to play their part in promoting best practice through standard setting, training, awareness-raising and enforcement.

Turning to commissioners, the Committee noted (paragraph 143) that their role in identifying and acting on poor practice had been highlighted by, amongst others, the Department of Health.  They noted the variations in understanding and implementation of the Act amongst commissioners, singling out as an example of good practice the work of the West Midlands Regional DoLS Leads group (paragraph 144).  When discussing the evidence given about the role of NHS England, the Committee – rightly – noted that the evidence was, itself, of concern in two ways.  “First, it demonstrates the extent to which the Act is intrinsically linked with safeguarding within NHS systems and structures. This is disconcerting in light of the evidence that we received about the imbalance between empowerment and paternalism in some health care settings. Second, the description provided is of structures rather than practice” (paragraph 150).

Drawing the threads together, the Committee concluded in this regard that:

151.  Commissioning has a vital role to play in ensuring that the Act is implemented and complied with in practice. We have noted examples of how commissioners can promote good practice through support and contractual requirements. We recommend that the Government, and subsequently the independent oversight body, work with the Association of Directors of Adult Social Services and NHS England to encourage wider use of commissioning as a tool for ensuring compliance.

152. We recommend that the ‘refresh’ of the NHS Mandate in 2014 include requirements explicitly connected to the implementation of the Mental Capacity Act, based on evidence of good practice gathered from Clinical Commissioning Groups.

153. We further recommend that NHS England and ADASS take steps to ensure that the empowering ethos of the Mental Capacity Act is understood and given visibility within commissioning, even where this may appear to conflict with the safeguarding agenda.”

The Committee then considered access to advice and information on the MCA, noting how frequently witnesses had called for improved access to information despite the number of sources available.  The Committee concluded (at paragraph 159) that  “[a] wide range of audiences require information on the Act, ranging from medical practitioners to local authorities, legal professionals, families, carers and people who may lack capacity. Current methods of provision, principally the Codes of Practice, are not meeting the needs of all concerned.”  It did not believe that a standard review of the Code of Practice was adequate to meet the information needs identified.  Rather “[a] broader approach to meeting the diverse needs is required, with the possibility of several tailored resources being designed for different audiences. Some of these resources could be provided exclusively online in order to be updated in line with case law” (paragraph 160).   It therefore recommended that, in the first instance, the MCA Steering Group should give consideration to how the specific information needs of the different groups affected by the Act can best be met; it also – importantly – noted the importance of consistent information being provided across professional groups and sectors, including those outside health and social care.

I would whole-heartedly endorse the recommendations of the Committee in this regard.  As flattering as it is to have professionals (of all hues) tell us that our Newsletter is the only reliable source of information that they have, and that they rely upon the guidance notes that we are able to produce from time on aspects of MCA practice, there is something profoundly wrong about the fact that this information is having to come from my colleagues in Chambers and I.  I would also endorse strongly the need to make sure that information is consistent but calibrated to the needs of the particular audience so as to ensure that those parts of the message that are most relevant are not lost.

Chapter 5: Advocacy and Advance Planning


The Committee first considered the position of IMCAs, noting the evidence as to (inter alia) variations in commissioning, standards, ability to challenge commissioners and working relationships.   The Committee noted the extent to which their role was widely praised and much of the evidence had called for their role to be extended – they echoed this in their recommendations that the range of circumstances in which they are appointed be extended and that they should be involved earlier in the decision-making process (paragraph 175).

The Committee made further recommendations in this regard:

176. We recommend that local authorities use their discretionary powers to appoint IMCAs more widely than is currently the case. To support this, we recommend the Government issue guidance to local authorities and health service commissioners about the benefits of wider and earlier use of IMCA services. We believe the costs of greater IMCA involvement should be balanced against the resources required in lengthy disputes or ultimately in litigation.

177. Given the importance of the role of IMCAs in the lives of vulnerable adults we believe that the role requires further professionalisation to ensure consistency of service. This should be achieved through national standards and mandatory training in the Mental Capacity Act and the role of the IMCA within that. We recommend that responsibility for such standards and training be undertaken by the independent oversight body which we recommend in chapter 4, enabling peer support and consistency between IMCA services.”

The Committee, which had heard powerful evidence from Steven Neary as to the difficulties he encountered in the legal battle relating to his son, also recommended that “the Government consider the establishment of a form of self-referral for IMCA services to prevent the damaging delay that occurred in the case of Mr Steven Neary” (paragraph 178).


Whilst the Committee heard evidence from the Public Guardian as to the increasing take up of LPAs, the overall tenor of the evidence was that they were not widely understood as a tool for advance planning, and their effectiveness was hampered by the fact that the powers that they granted were often not recognised or understood across the board from banks to clinical settings.  The Committee also recorded the concession by Lord McNally that the power under s. 58(1)(h) of the Act to deal with complaints against deputies and attorneys was “a rather passive power.”

The Committee noted two specific anomalies in relation to LPAs:

(1)  the complexities of appointing successive deputies identified in the case of Mrs Boff; and

(2) In a topic particularly close to my heart, the problems relating to Schedule 3 of the MCA 2005 and the lack of clarity as to which formal requirements must be complied with in order for a ‘foreign’ power of attorney to be effective in England and Wales, a matter of particular importance in light of uncertainty over the status of Scottish powers of attorney in England.

The Committee issued a series of specific recommendations (at paragraph 192) to address the problems of the low take up and understanding of LPAs, especially in relation to health and welfare, and also to address the anomalies set out above.

Advance Decisions

The major themes in the evidence received in relation to ADRTs were (1) how little they were used; and (2) how inadequate the systems in clinical settings were to deal with ADRTs.  The Committee noted that there “are an essential means of allowing individuals to determine their care in the event that they lose capacity. As with other aspects of the Act, the general public cannot benefit from this opportunity if they are not made aware of it. Similarly, advance decisions that are not recorded and shared with relevant public bodies are likely to be ineffective. Poor understanding among health and care staff needs to be addressed in order to promote the benefits of advance decisions to patients, as well as to ensure that they are followed when valid and applicable.” The Committee then made a number of recommendations for the Government working with the new independent body to meet these problems.

Chapter 6: The Court of Protection

The recommendations of the Committee in relation to the Court of Protection can be taken relatively shortly, because the Committee ended up spending relatively little time considering the Court.   The Committee first considered the question of delays:

209. We note the considerable strain on the processing of applications to the Court of Protection, due to the increased volume of work and significant cuts in staffing. Despite the appointment of authorised officers to handle non-controversial property and financial affairs applications, there continues to be a bottleneck in the process. We are concerned that the means by which this bottleneck is currently eased is from the pool of District Judges. It is questionable whether a system which relies on District Judges deputising for non-judicial staff is cost-effective or proportionate.

210. We recommend the Government consider increasing the staff complement of authorised officers, following consultation with the Court of Protection, to achieve a significant reduction in the time taken to deal with non-contentious property and financial affairs cases.

211. We also recommend that the Government consider as a matter of urgency the updating of the Rules of the Court, as recommended by the ad hoc Rules Committee and, as necessary, in light of subsequent changes.” [unsurprisingly, I agree with this recommendation in particular as I sought to emphasise it before the Committee!]

The Committee welcomed the move by Sir James Munby P to make more judgments available to the public.  It was also “persuaded that the Court of Protection has a range of audiences requiring access to information for professional or personal reasons, and that the staff and judiciary of the Court are best placed to determine what that information should be.” It therefore recommended that the Government consider enabling the Court to address the needs of its audiences either by giving it greater control of the information provided on or by enabling the Court to have a dedicated website.” (paragraph 219).

The Committee noted the call by some for a mental capacity tribunal, but whilst having sympathy with the concerns raised regard access and delay, believed “that the replacement of the Court with a new tribunal system would risk the loss of expertise and potentially increase costs in the system. We therefore conclude that a new tribunal system would not be the best way to address these concerns” (paragraph 223).


As regards mediation, the Committee noted the pilot being undertaken by the OPG, but expressed some concerns as to whether it would provide robust data because of the small sample size and because of the decision to conduct mediation by telephone.   It noted that “[m]ediation under the Mental Capacity Act should conform to the decision-making framework set out in the Act, and provision must be made to ensure that the views and wishes of P are adequately represented and central to the outcome. We recommend that the evaluation of the mediation pilot by the Office of the Public Guardian includes consideration of the extent to which the principles of the Act were reflected in the process.

Overall, the Committee was persuaded that mediation would be beneficial in many cases prior to initiating proceedings in the CoP, and recommended (paragraph 232) that consideration should be given to making it a prerequisite for launching proceedings, especially in cases concerning property and financial affairs where the costs fall to P.

I would also suggest that sight should not be lost of the power of mediation to bring about resolution (or at least narrowing) of issues even when proceedings are underway.

Access to the Court

The Committee expressed its concern that the responsibility of public authorities to initiate proceedings in cases of dispute is not widely known or adhered to. They also shared the concerns of Professor Fennell and Dr Series regarding the ability of the person concerned to challenge decision-making when all others are in agreement. Therefore recommended (paragraph 237) that “the Government, and in future the independent oversight body, provide clearer guidance to public authorities regarding which disputes under the Act must be proactively referred to the Court by local authorities. This should include situations in which it is the person who is alleged to lack capacity who disagrees with the proposed course of action. Efforts must be made to disseminate this guidance to families and carers as well as to local authorities.

Legal aid

The Committee noted the extent to which concerns relating to legal aid had been advanced before it.  It concluded thus:

248. The Mental Capacity Act concerns some of the most vulnerable individuals in society, whom the law recognises may require support to make decisions. That such individuals will require support to access the legal system is indisputable.

249. We note the pressures on legal aid, but we are concerned by the inconsistent provision of non-means tested legal aid for cases concerning a deprivation of liberty, including those where there is a dispute over whether a deprivation is taking place. We cannot see a justification for such inconsistency and we recommend that the gap in protection that it creates be remedied as a matter of urgency.

250. We are concerned by reports that those found to lack litigation capacity are prevented from bringing proceedings due to a lack of legal aid, and note the concerns raised in this regard by the Joint Committee on Human Rights. We are particularly concerned that individuals whom the Court of Protection has asked the Official Solicitor to represent are being refused representation on the grounds of ineligibility for legal aid.

251. We recommend that the Government reconsider the provision of resources to the Official Solicitor, with a view to determining whether some cases merit the same unconditional support as is currently afforded to medical treatment decisions.

252. We further recommend that the Government review the policy underlying the availability of legal aid for those who lack the mental capacity to litigate and therefore cannot represent themselves. For such people, denial of legal aid may result in having no access to Court. No-one who is found to lack the mental capacity to litigate should be denied access to Court solely because they do not have the means to pay for representation.

Chapter 7: Deprivation of Liberty Safeguards

The Committee’s most withering criticism was perhaps reserved for the DOLS safeguards.  The Committee rehearsed a catalogue of (depressingly familiar) evidence as to the extent to which they are flawed in execution and implementation (perhaps the most striking of which was the evidence from Charles J describing the experience of writing a judgment on the safeguards as feeling “as if you have been in a washing machine and spin dryer”).  In overview, the Committee noted that:

256. Despite the clear intention from Government to close the ‘Bournewood gap’, our evidence suggests that the Deprivation of Liberty Safeguards are frequently not used when they should be, leaving individuals without the safeguards Parliament intended.

257. The level and breadth of criticism of the Deprivation of Liberty Safeguards, including from the judiciary, demonstrates that the legislation is not fit for purpose. Better implementation would not be sufficient to address the fundamental problems identified.

258. We therefore recommend that the Government undertake a comprehensive review of the DoLS legislation with a view to replacing it with provisions that are compatible in style and ethos with the Mental Capacity Act. The model of widespread consultation that preceded the Mental Capacity Act itself should be followed, with adequate time allowed for effective Parliamentary scrutiny.

259. We further recommend that the independent body with responsibility for oversight and coordination of implementation of the Mental Capacity Act develop a comprehensive implementation action plan to accompany new legislation, in consultation with professionals, individuals, families and unpaid carers.”

More detailed recommendations were made in support of these overview recommendations, but for present purposes it is perhaps worth noting, in particular, that:

(1)   The Committee did not accept the suggestion made by some that a statutory definition was necessary, albeit that it noted that action was required to assist health and social care practitioners in identifying when a deprivation is taking place (paragraph 283);

(2)   Whilst it was not possible to eliminate the term ‘deprivation of liberty,’ better understanding of the purpose behind the safeguards was urgently required (paragraph 285);

(3)   The Committee recommended that the Government consider how the role of the RPR could be strengthened in replacement legislative provisions to provide an effective safeguard;

(4)   The Committee was unmoved by Norman Lamb MP’s suggestion that CoP authorisations should be sought to provide for deprivation of liberty in supported living arrangements: “[a]lthough recourse to the Court of Protection is available, evidence of the barriers individuals face in accessing the Court, and of the failure by local authorities to bring cases to Court when necessary, suggests that this is unlikely to provide the safeguards intended… We recommend that replacement legislative provisions extend to those accommodated in supported living arrangements (paragraphs 296-7);

(5)   Considering the Dr A case, the Committee considered that a ‘new Bournewood gap’ has been inadvertently created by the attempt to prevent overlap with the Mental Health Act 1983, and recommended that the replacement legislative provisions close this gap.

Chapter 8: Criminal Law Provisions

The Committee were distinctly underwhelmed by the quality of the evidence adduced by the Government as to the operation of s.44 MCA 2005, but welcomed “the Government’s commitment to discuss with the Crown Prosecution Service and the Association of Chief Police Officers the need to ensure appropriate use is made of section 44 of the Mental Capacity Act. We request that specific information on this be provided in the Government response to this Report” (paragraph 308).

The Committee, responding in part to heavy judicial criticism of the framing of the offence and recommended that “the Government initiate a review of whether the offence in section 44 of the Act meets the test of legal certainty; and if it does not, to bring forward new legislative provisions. The results of this review should be published within 12 months of publication of our Report.”

Concluding comment

There is already work under way by the Government in recognition of the fact that – despite the assurances given by civil servants at the outset of the inquiry – there is much still to be done.   Examples of this are the guidance (from me, although that is irrelevant!) that the Department of Health has commissioned for litigation friends and the guidance that Empowerment Matters has been commissioned to produce on the better assessment of capacity to manage property and affairs.   The establishment of the Mental Capacity Act Steering Group is also – as the Committee recognised – a start.

However, the recommendations made by the Committee are very much more fundamental.  They would require the investment of substantial sums by the Government both in the establishing a Mental Capacity Act Commission and in reworking the DOLS safeguards.   They come in some ways at a very difficult time, not just because there is – as we are being told on a daily if not hourly basis – no spare resources, but also because the Care Bill is now at such a late stage in its Parliamentary progress that there would be no opportunity at all to use this obvious vehicle to bring about some of the changes.  It is therefore up to us to ensure that proper pressure is brought upon the Government to ensure that the momentum generated by this vital report is not lost and priorities diverted elsewhere in the run-up to the next election.

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