CONCLUSIONS AND RECOMMENDATIONS
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)
OVERSIGHT OF ORGANISATIONS
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)
TRAINING AND OVERSIGHT OF PROFESSIONALS: THE ROLE
OF PROFESSIONAL REGULATORS AND MEDICAL ROYAL COLLEGES
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)
COMMISSIONING
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)
ACCESS TO ADVICE AND INFORMATION
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)
USE OF THE DEPRIVATION OF LIBERTY SAFEGUARDS
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)
FAILURE TO APPLY THE PRINCIPLES
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)
COMPLEXITY
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)
A DEFINITION?
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)
UNHELPFUL NOMENCLATURE
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)
THE EFFECTIVENESS OF THE RELEVANT PERSON'S REPRESENTATIVE
ROLE
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)
THE EFFECTIVENESS OF THE SUPERVISORY BODY ROLE
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)
POTENTIAL NEW GAPS
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)
THE ELIGIBILITY CRITERIA AND A 'NEW BOURNEWOOD GAP'?
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
DELAYS
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)
TRANSPARENCY
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 www.gov.uk
or by enabling the Court to have a dedicated website. (paragraph 219)
TRIBUNAL
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)
MEDIATION
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)
ACCESS
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)
LEGAL AID
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)
| 
