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


Implementation of the Core Principles: Is the Act working as intended?

1.  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. (paragraph 103)

2.  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. (paragraph  104)

3.  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. (paragraph  105)

4.  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. (paragraph  106)

5.  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. (paragraph107)

6.  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. We consider how this can be achieved in the next chapter.(paragraph  108)

7.  Recommendation 1: 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. (paragraph 109)

8.  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.(paragraph  110)

9.  Recommendation 2: 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. (paragraph  110)

Addressing poor implementation of the Act

10.  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. (paragraph  113)

11.  Recommendation 3: 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. (paragraph  114)

12.  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. (paragraph 115)

13.  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. (paragraph  116)

14.  Recommendation 4: 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. (paragraph  117)


15.  It is clear that the CQC has not used its existing powers to best effect to ensure that the requirements of the Mental Capacity Act are met in practice. We welcome the recognition by the CQC that a new focus on the Act is required in the way it regulates and inspects services. (paragraph  126)

16.  Recommendation 5: We recommend 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. Meeting 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 (paragraph  127)


17.  The Act needs a higher profile among professionals in order to be properly understood and effectively implemented. The medical Royal Colleges and professional regulators have a responsibility to play their part in promoting best practice through standard setting, training, awareness-raising and enforcement. (paragraph  137)

18.  Recommendation 6: We recommend the Government work with professional regulators and the medical Royal Colleges to ensure that the Act is given a higher profile. This work should emphasise the empowering ethos of the Act, and the best interests process as set out in section 4 of the Act. In future, we would expect the responsibility for this to sit with the independent oversight body. (paragraph  138)

19.  Recommendation 7: In particular, we recommend that the GMC:

·  ensure that there is leadership in psychiatry within all medical schools in order to give a higher profile to mental health;

·  place proper emphasis on the Mental Capacity Act in its publication 'Good Medical Practice';

·  enhance training on the Mental Capacity Act in all post-graduate education, especially for GPs. (paragraph  139)

20.  Recommendation 8: The proposed fourth year of training for GPs provides an opportunity to embed and enhance understanding of the Mental Capacity Act with this group of practitioners. We recommend that the Government supports the proposal in light of the vital role which GPs play in providing health care in the community. (paragraph  140)

21.  Consistency in training and oversight of professionals is essential. Whatever body is given responsibility for the implementation of the Act will have a vital role in co-ordinating the response of the medical Royal Colleges and professional regulators to ensure a shared understanding of legal obligations under the Act is used by all. (paragraph  141)

22.  We expect that the existence of an independent oversight body with responsibility for implementation of the Act will act as a spur to the medical Royal Colleges and the professional regulators in taking forward work to raise the profile of the Mental Capacity Act and ensure compliance. (paragraph 142)


23.  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.(paragraph  151)

24.  Recommendation 9: 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. (paragraph  151)

25.  Recommendation 10: 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. (paragraph  152)

26.  Recommendation 11: 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. (paragraph  153)


27.  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. (paragraph  159)

28.  We do not believe that a standard review of the Code of Practice is adequate to meet the information needs identified. 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)

29.  Recommendation 12: We recommend that, in the first instance, the Mental Capacity Act Steering Group give consideration to how the specific information needs of the different groups affected by the Act can best be met. We recommend that the Steering Group take into account the needs of different audiences for different types of information: for example, legal practitioners will be interested in latest developments in case law; a carer may need a brief summary of their responsibilities under the Act; a person lacking capacity may need their rights presented in an accessible format. In future, ensuring the regular review of such information resources would be the responsibility of the independent oversight body. (paragraph  161)

30.  It will be important for consistent information to be provided across professional groups and sectors, including those outside health and social care. The independent oversight body which we recommend should in future co-ordinate between regulators and professional bodies to ensure a common understanding of the Act. (paragraph  162)

Deprivation of Liberty Safeguards

31.  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. (paragraph  256)

32.  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. (paragraph  257)

33.  Recommendation 13: 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. (paragraph  258)

34.  Recommendation 14: 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. (paragraph  259)


35.  We are concerned that there is a very real risk that the Deprivation of Liberty Safeguards are frequently not used when they should be, leaving individuals without the safeguards Parliament intended, and leaving care providers vulnerable to legal challenge. (paragraph  270)


36.  Recommendation 15: We recommend that replacement legislative provisions make a clear link to the principles of the Mental Capacity Act to ensure consistency with the empowering ethos of the Act as a whole. (paragraph  274)


37.  Recommendation 16: We recommend that replacement legislative provisions and associated forms be drafted in clear and simple terms, to ensure they can be understood and applied effectively by professionals, individuals, families and carers. (paragraph  277)

38.  We note that the Code of Practice to the Mental Health Act 1983 is due for review in 2014. Clarification on the relationship between the Mental Capacity Act and the Mental Health Act is urgently required to assist practitioners. (paragraph  278)


39.  We agree with the Government and the Official Solicitor that no statutory definition of "deprivation of liberty" is currently required. While the lack of a definition may reduce certainty, the term was intended to echo the wording of Article 5 of the European Convention on Human Rights, and the current statutory provisions are adequate to achieve this. At the same time, action is clearly needed to assist health and social care practitioners in identifying such a deprivation. We address training and awareness raising in chapter 4. (paragraph  283)


40.  The term 'deprivation of liberty' is unhelpful, but it may not be possible to eliminate its use even with replacement provisions, given that it derives from Article 5 of the European Convention on Human Rights. (paragraph  285)

41.  Recommendation 17: Better understanding of the purpose behind the safeguards is urgently required, and we recommend that achieving this be made a priority by the independent oversight body. (paragraph 285)


42.  In principle the establishment of the role of the Relevant Person's Representative has been positive. However it does not always provide an effective safeguard for P's rights when challenging local authorities. (paragraph  288)

43.  Recommendation 18: We recommend that the Government consider how the role of the Relevant Person's Representative could be strengthened in replacement legislative provisions to provide an effective safeguard. (paragraph  288)


44.  The evidence suggests that supervisory bodies are not consistently providing the safeguard intended, indicated in part by the regional variations in how they discharge their functions. (paragraph  292)

45.  Recommendation 19: We recommend that effective oversight of any future supervisory body function be provided for in the replacement provisions for the Deprivation of Liberty Safeguards. (paragraph 293)


46.  Vulnerable adults living in supported accommodation are at risk of being unlawfully deprived of their liberty because they fall outside the scope of the Deprivation of Liberty Safeguards. Although 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. (paragraph  296)

47.  Recommendation 20: We recommend that replacement legislative provisions extend to those accommodated in supported living arrangements. (paragraph  297)


48.  Recommendation 21: We consider that a 'new Bournewood gap' has been inadvertently created by the attempt to prevent overlap with the Mental Health Act 1983. We recommend that replacement legislative provisions close this gap. (paragraph  300)

Independent Mental Capacity Advocates

49.  The role of the IMCAs has been widely praised and much of the evidence calls for their role to be extended. We believe that extending the range of circumstances in which IMCAs are appointed, and involving them earlier in the decision-making process, would be beneficial. (paragraph  175)

50.  Recommendation 22: 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. (paragraph  176)

51.  Recommendation 23: 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. (paragraph  177)

52.  Recommendation 24: We recommend 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)

Lasting Powers of Attorney

53.  As with other aspects of the Mental Capacity Act, low levels of awareness have affected implementation of the provisions relating to Lasting Powers of Attorney. Awareness needs to be raised among the general public of the benefits of Lasting Powers of Attorney in order to encourage greater take-up, especially for Health and Welfare matters. We support the initiatives of the Public Guardian to improve take-up by simplifying the forms and reducing the cost of registration, as well as identifying other barriers to take-up. (paragraph  191)

54.  Recommendation 25: We recommend that the Government, working with the independent oversight body recommended in chapter 4, and the Office of the Public Guardian:

·  address the poor levels of understanding of LPAs among professional groups, especially in the health and social care sector, paying specific attention to the status of Lasting Powers of Attorney in decision-making;

·  consider how best to ensure that information concerning registered Lasting Powers of Attorney can be shared between public bodies, and where appropriate with private sector bodies such as banks and utilities;

·  issue guidance to local authorities that their new responsibilities for provision of information in relation to care contained in the Care Bill should include information on Lasting Powers of Attorney;

·  consider how attorneys and deputies faced with non-compliance by public bodies or private companies can be supported in the absence of specific sanctions;

·  review the apparent anomalies in the current arrangements with regard to successive replacement attorneys, and the status in England of Scottish Powers of Attorney. (paragraph  192)

Advance decisions to refuse treatment (ADRTs)

55.  Advance decisions to refuse treatment 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. (paragraph  199)

56.  Recommendation 26: We recommend that the Government, working with the independent oversight body:

·  urgently address the low level of awareness among the general public of advance decisions to refuse treatment;

·  promote better understanding among health care staff of advance decisions, in order to ensure that they are followed when valid and applicable;

·  promote early engagement between health care staff and patients about advance decisions to ensure that such decisions can meet the test of being valid and applicable when the need arises;

·  promote the inclusion of advance decisions in electronic medical records to meet the need for better recording, storage and communication of such decisions. (paragraph  200)

The Court of Protection


57.  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. (paragraph  209)

58.  Recommendation 27: 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. (paragraph  210)

59.  Recommendation 28: 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. (paragraph  211)


60.  We believe that the reputation of the Court will improve with greater transparency. We therefore welcome the decision by the President of the Court of Protection to make more judgments available to the public. (paragraph  216)

61.  We are 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.(paragraph  218)

62.  Recommendation 29: We recommend 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)


63.  While we have sympathy with concerns raised regarding access and delay, we believe 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)


64.  The Office of the Public Guardian appears to be well placed to provide a mediation service in cases of dispute involving holders of Lasting Powers of Attorney or Court appointed deputies. We are concerned, however, that their proposed pilot study will not provide robust data upon which to make a decision about the feasibility of such a service because of the small sample size and the decision to conduct mediation by telephone. (paragraph  230)

65.  Mediation 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. (paragraph   31)

66.  Recommendation 30: We are persuaded that mediation would be beneficial in many more cases prior to initiating proceedings in the Court of Protection. We recommend that consideration be given to making mediation a pre-requisite for launching proceedings, especially in cases concerning property and financial affairs where the costs fall to P. (paragraph  232)


67.  We are concerned that the responsibility of public authorities to initiate proceedings in cases of dispute is not widely known or adhered to. We also share 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. (paragraph  236)

68.  Recommendation 31: We recommend 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. (paragraph  237)


69.  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. (paragraph  248)

70.  Recommendation 32: 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. (paragraph  249)

71.  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. (paragraph  250)

72.  Recommendation 33: 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. (paragraph  251)

73.  Recommendation 34: 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. (paragraph  252)

Criminal Law Provisions

74.  We welcome 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)

75.  Recommendation 35: We recommend 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. (paragraph  309)

Measuring success

76.  While we recognise that the application of the Act is very wide and a complete picture would be hard to achieve, the absence of any monitoring is indefensible, if the benefits of this legislation are to be delivered.(paragraph 35)

77.  Recommendation 36: We recommend as a matter of urgency that the Government take steps to establish regular and dedicated monitoring of implementation of the Act, and that this should include all the sectors across which the Act applies. (paragraph  35)

78.  Recommendation 37: We recommend that the independent body with overall responsibility for implementation of the Act, be given responsibility for ensuring such monitoring takes place. (paragraph 36)

Measuring public attitudes

79.  Recommendation 38: We recommend that the Government introduce a robust method for measuring public and professional attitudes to issues of capacity, in order to be able effectively to measure any change in the prevailing culture. Ideally, benchmarking of this sort would have taken place prior to the implementation of the Act, but there would still be benefits in starting such activity now. This would be a key task for the independent body to be given overall responsibility for the Act. (paragraph  39)

Keeping the Act under review

80.  Recommendation 39: We recommend that, no more than 12 months after publication of this Report, the Liaison Committee seek evidence from the Government on the actions they have taken in response to the two key recommendations made in the summary of this report. (paragraph  22)

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