SUMMARY
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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