Mental Capacity Act 2005: post-legislative scrutiny - Select Committee on the Mental Capacity Act 2005 Contents


We were established in May 2013 to conduct post-legislative scrutiny of the Mental Capacity Act 2005. Our task was to answer the question of whether the Act is working as Parliament intended.

The Mental Capacity Act was a visionary piece of legislation for its time, which marked a turning point in the statutory rights of people who may lack capacity— whether for reasons of learning disability, autism spectrum disorders, senile dementia, brain injury or temporary impairment. The Mental Capacity Act placed the individual at the heart of decision-making. Capacity was to be presumed unless proven otherwise. Decision-making was to be supported to enable the individual as far as possible to take their own decisions. Unwise decisions were not to be used as indicators of a lack of capacity—like others, those with impairments were entitled to take risks and to make poor decisions. When a person was found to lack capacity for a specific decision, the 'best interests' process ensured that their wishes and feelings were central to the decision being made and, importantly, provided protection from harm to vulnerable adults. The Act signified a step change in the legal rights afforded to those who may lack capacity, with the potential to transform the lives of many. That was the aspiration, and we endorse it.

Our findings suggest that the Act, in the main, continues to be held in high regard. However, its implementation has not met the expectations that it rightly raised. The Act has suffered from a lack of awareness and a lack of understanding. For 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.

One reason for the Act's patchy implementation is that there is no central ownership of the Act. There are many bodies involved in its implementation but no single body has responsibility for it. It is the priority of none. This is in part due to the scope of the Act—it applies very widely and is not restricted to a specific setting or defined group of people. However, the failure to provide a focal point for ownership and oversight has allowed it to be largely unimplemented.

Our principal recommendation to address the failure to embed the Act in every day practice is that responsibility for oversight of its implementation should be given to a single independent body. This body could be free-standing or located within an existing organisation. Its role would be to oversee, monitor and drive forward the implementation of the Act. We provide a 'job description' for the independent oversight body below. The independent oversight body would not remove ultimate responsibility for the Act from Ministers, but it would locate in one place ownership of the Act and thereby provide a form of accountability, and a focus for enhanced activity.

Our other key recommendation concerns the Deprivation of Liberty Safeguards. We considered the safeguards separately from the rest of the Act, which is largely how they were perceived by our witnesses. They were inserted into the Mental Capacity Act by the Mental Health Act 2007, designed to fill a gap in the legislative framework identified in the case of HL v UK in the European Court of Human Rights. The intention behind the safeguards—to provide protection in law for individuals who were being deprived of their liberty for reasons of their own safety—was understood and supported by our witnesses. But the legislative provisions and their operation in practice are the subject of extensive and wide-ranging criticism. The 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.

The only appropriate recommendation in the face of such criticism is to start again. We therefore recommend a comprehensive review of the Deprivation of Liberty Safeguards with a view to replacing them with provisions that are compatible in style and ethos to the rest of the Mental Capacity Act.

We make other recommendations about the operation of the Act throughout the report. A full list of our conclusions and recommendations can be found at the beginning of the report.

Independent Oversight Body for the implementation of the Mental Capacity Act—a job description

The independent oversight body will oversee, monitor and drive forward implementation of the Act. It should reflect in its composition the professional fields within which the Act operates, as well as the range of people directly affected by the Act, and their families and carers. This will be essential for its credibility and acceptance. The independent body will not be a regulator or an inspectorate, although it will work closely with regulators who have responsibilities in relation to the Act.

We recommend that the independent oversight body should:

·  Have responsibility for oversight, co-ordination and monitoring of implementation of the Act;

·  Work closely with relevant regulators and professional bodies to ensure that the Act is given a higher profile in training, standard setting and enforcement;

·  Provide support for professionals required to implement the Act;

·  Drive improved public awareness of the Act, and introduce robust awareness measures;

·  Present a report on its activities to Parliament annually.

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