Why a Mental Capacity Act Commission?
One of the main recommendations made by the House of Lords Select Committee in its report upon the MCA 2005 was that:
“114… 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.”
What should it look like?
Can I suggest that we might look not just back in time but across the border for a model for a Mental Capacity Act Commission?
I have recently been speaking at the Law Society of Scotland’s first Mental Health and Incapacity Conference. Whilst there, I had the opportunity both to meet the key players in the Mental Welfare Commission for Scotland (‘the MWC’) and to learn more about the work that they do. My experiences reinforced my conviction that we have a lot to learn from the expertise of this body and that it is precisely the sort of body that is missing in England and Wales.
In this post, I want to highlight some of the current work done by the MWC, as well as the resources that are available on their website that would – already – assist practitioners and professionals in England and Wales.
What is the MWC?
The MWC was originally set up in 1960 under the Mental Health Act. It is accountable to Ministers at the Scottish Government for the statutory duties it discharges under both mental health and mental incapacity (in Scotland adult incapacity). The MWC carries out its work and produces reports independently from the Scottish Government. It has (by law) service users and carers on its Board and as visitors.
It can be seen that the MWC’s remit is wider than the MCAC proposed by the Select Committee. There might well be something to said for the equivalent approach being adopted in England and Wales given how intermeshed the legislation (and issues) relating to mental health and mental capacity law – but that is perhaps stage 2!
What does the MWC do?
The MWC has five main tasks:
- Monitoring the Acts
- Information and advice
- Influencing and challenging
Given where the Select Committee envisages the distinction lying between the role of bodies charged with regulation and inspection on the one hand (which would remain the role – primarily – of the CQC) and the role of the MCAC on the other, the ‘watchdog’ role of the MWC may not be translated directly into the English model. I would, however, hope that any MCAC would be charged with the ability to conduct investigations of the kind that the MWC has conducted over the years, which focus upon individual cases but expose much wider issues. See, for a very recent example, the investigation that into the case of Ms DE revealing the serious deficiencies in the ATOS benefit capability assessment process. I would also specifically draw attention to the investigation into the case of Mr and Mrs D, revealing problems with the arrangements in relation to the creation of and oversight over powers of attorney, which led directly to the issue of updated guidance by the Law Society of Scotland in relation to powers of attorney and to new guidance on dealing with vulnerable clients. (In passing, I note that both sets of guidance are of considerable use to those south of the border as well because the problems confronted are very similar).
The other crucial role of the MWC that I would highlight is that of its guide dog role in using their overview of how the relevant legislation operates in practice to help Scottish Ministers and service managers shape policy. It is for precisely this role, it seems to me, that a MCAC in England and Wales is needed. It was very clear to me from observing the interactions between the MWC officials and (to use that horrible word) ‘stakeholders’ at the conference that the role of the MWC as a critical friend is valued by public authorities. The MWC has been established for many years, and has built up its authority over time – in part through conducting hard-hitting investigations. A MCAC in England and Wales would have to establish its own authority, but there is no reason to consider that it cannot be done if it is properly resourced and led. We have a huge – if diffuse – body of expertise and (equally important) enthusiasm which I am confident would coalesce rapidly around an organisation that was given statutory duties and with which public authorities would have a duty to engage. Precisely how it would interact with the regulatory
The MWC produces an extensive range of guidance materials including detailed, thoughtful and (importantly!) regularly updated good practice guides. By way of example of those relevant to those in England and Wales (the legal framework is different but the problems are in essence the same):
One other guide that I would highlight as particularly useful is the fact-sheet on cross-border transfers under mental health legislation (a notoriously complicated area).
But don’t just take my word for it. With thanks to Emma Horne of Morrisons LLP, the STEP Young Practitioner of the Year 2013 and real authority on the area, I reproduce below her views as to the benefits of the MWC.
“Under the Adults with Incapacity (Scotland) Act 2000 (the 2000 Act), the Mental Welfare Commission (MWC) has general functions in connection to any adult to whom the Act applies by reason of, or by reasons which include mental disorder. These general duties are concisely set out in Section 9 of the 2000 Act as amended by the Mental Health (Care and Treatment) (Scotland) Act 2003 (the 2003 Act). The 2000 Act must be read in conjunction with the MWC duties set out in Section 4 – 20 of the 2003 Act. The duties set out in the 2003 Act are much more extensive although a number of theses duties will include those protected by the 2000 Act.
In my experience, the MWC has been an invaluable protection for those with a mental disorder, but furthermore they have been of significant assistance to many individuals, guardians, attorneys, interveners and professionals seeking advice, and/or requesting that they investigate a particular case. The MWC provide impartial advice and are an independent pair of eyes considering and recording all applications relating to personal welfare made under Part 2 & 6 of the 2000 Act and receiving notification of all orders granted under the 2003 Act. Importantly, the MWC has not only been given powers to act, but also the “teeth” to enable them to act, for example, Section 81 of the 2003 Act provides the MWC with power to revoke a Compulsory Treatment Order (CTO), or where the MWC are not willing to revoke the Order they may refer the matter to the Mental Health Tribunal under Section 98 of the 2003 Act, Section 73 (3) and (3A) of the 2000 Act provides that the MWC has the power to recall a welfare guardianship order, or Section 3 provides that any person (including the MWC) claiming an interest in in an adult’s affairs can make an application to the Sheriff Court for directions. Interestingly the MWC do not have power to recall an intervention order or power of attorney relating to welfare matters, but they could of course refer the matter to the Court under Section 3.
An individual may be prohibited from taking a matter forward due to something as simple as an organisation, person, or body failing to respond to their correspondence, or a lengthy appeals procedure. The combination of knowledge and authority the MWC has to investigate matters without the normal barriers which one might normally encounter is irreplaceable, and in my view essential in ensuring that our systems are transparent and encompass adequate layers of protection. Furthermore, whilst we have some very good guidance documents (e.g. for guardians, attorneys etc…) these documents are often of significant size and can be extremely daunting and off putting to those who are already under a significant amount of pressure, and indeed who may not have particularly good reading skills. Having an independent telephone advice service enables those who require advice, for whatever reason, are able to access advice quickly and free of charge to assist them to comply with their duties. Unfortunately, it is my understanding that there is no such written guidance for Named Persons under the 2003 Act however, this will hopefully be something we see in the near future. In the meantime, I am sure the MWC would assist a Named Person to understand their role and duties.
Many of the powers granted to the MWC under the 2000 Act are duplicates of the functions of the local authority. However, as the local authority is regularly involved in the care of the adult and/or the patient, it is clear why this duplication of powers is an extremely valuable safeguard. The involvement of the MWC is equally as valuable in cases under the 2003 Act for exactly the same reason. Our legislation in this area of law is different in a number of ways however, the need for independent checks and safeguards remain the same and I cannot recommend highly enough the work of the MWC in Scotland.”
I for one will be banging the drum for the MWC in England very loudly over the next few months!