Mental Capacity Act 2005: post-legislative
scrutiny
Chapter 1: Introduction
1. The Committee on the Mental Capacity Act 2005
was established on 16 May 2013 "to consider and report on
the Mental Capacity Act 2005",[1]
with a deadline of reporting to the House by 28 February 2014.
Over the course of our inquiry we held 15 public evidence hearings
at which we questioned 61 witnesses. We received a very large
number of written submissions from a wide range of organisations
and individuals, including those with direct and personal experience
of the Mental Capacity Act, which gave us an indication of the
high levels of interest in the Act and the issues which it addresses.
In total 216 written submissions were received, of which 206 were
accepted as evidence.[2]
The combined volume of written and oral evidence, amounting to
over 1,800 pages, is published on our website.[3]
We are grateful to all our witnesses for their contributions.
2. In addition, a delegation of the Committee
met adults with learning disabilities, in a consultation facilitated
by Mencap Hammersmith & Fulham branch, to hear directly about
the impact of the Mental Capacity Act in their day-to-day lives.
Two members of the Committee attended a special meeting of the
Forget-Me-Nots, a peer support and advocacy group for people with
dementia in East Kent, to hear their views of the Act, and of
decision-making in their lives.[4]
Finally, the Committee visited the Court of Protection, gaining
valuable insights into the work that is carried out both in the
Court and the 'back office' functions. We are grateful to the
President of the Family Division for facilitating access to the
Court and to the staff of the Court of Protection for their assistance
in the visit; and to Mencap Hammersmith & Fulham branch and
to the Forget-Me-Nots and Innovations in Dementia for facilitating
these important meetings.
3. Our inquiry has been evidence-led. The issues
which we comment on are those which were drawn to our attention
most consistently by witnesses across the many submissions we
received and the oral evidence we heard. We have not sought to
conduct an exhaustive examination of every section and schedule
of the Act.
4. As a result of this approach some sectors
feature more heavily than others. The majority of evidence we
received focused on the implementation of the Act in health and
social care settings, with an inevitable focus on health and wellbeing.
There is somewhat less evidence on decision-making concerning
property and financial affairs, and on the other sectors across
which the Act applies, such as banking or policing. It is difficult
therefore to draw any clear conclusions about the Act's implementation
outside the health and social care setting, but in light of what
we have heard and received, we would caution against assuming
that a lack of evidence suggests that the Act is working well
in those sectors.
5. Throughout this report any references to the
Mental Capacity Act refer exclusively to the provisions of the
Act as passed in 2005, prior to the amendment by the Mental Health
Act 2007 which inserted into the Mental Capacity Act the Deprivation
of Liberty Safeguards. The safeguards are principally dealt with
in chapter 7 of this Report; in chapter 4 in relation to the CQC;
and in chapter 5 in relation to advocacy.
The role of post-legislative scrutiny
6. The function of post-legislative scrutiny
is to consider legislation in practice; it is not the purpose
of post-legislative scrutiny to re-open policy debates which were
settled at the time of the passage of the Bill. To fulfil our
function we have sought through our evidence-gathering to answer
the question of whether the Mental Capacity Act 2005 is working
as Parliament intended. It follows therefore that we have focused
on the implementation of the Act. Where the evidence has identified
gaps in implementation we have reported this and made recommendations
for improvement.
7. Post-legislative scrutiny is a relatively
new activity for the House of Lords. The first House of Lords
Select Committee appointed specifically to undertake post-legislative
scrutiny was established in May 2012, "to consider the statute
law on adoption".[5]
In its Report, published in March 2013, it made the following
comments: "where relevant we have commented on the legislation,
but more frequently we have made recommendations concerning practice.
One conclusion we draw from this is that legislation is only part
of the picture … and there should be more emphasis on practice".[6]
8. We find significant congruence between that
conclusion and our own inquiry. We agree with the Minister of
State for Care and Support, Norman Lamb MP, who told us,
"You can get it absolutely right on paper but it does not
necessarily mean that it happens on the ground and changes people's
lives".[7]
9. We also note the positive impact an inquiry
such as ours can have in shining a light on an area of policy
which might otherwise be neglected. When we began our evidence
hearings the departmental officials from the Ministry of Justice
and Department of Health gave a confident assessment that the
Act had been "a success", although it was conceded that
it would take "time to embed".[8]
Since then the Government has seen fit to establish the Mental
Capacity Act Steering Group whose main purpose, we were told,
is "to agree a joint programme of action to continue to implement
the Mental Capacity Act and the Deprivation of Liberty Safeguards".[9]
In our final evidence session on 3 December Lord McNally, then
Minister of State for Justice, conceded that while getting the
Act onto the statute book had been a success, ensuring that it
was fully implemented and understood was "work in progress".[10]
10. We welcome the establishment of the Steering
Group, and we are pleased that Mr Lamb has undertaken to
consult with service users, families and carers about whether
or not the Act is being used successfully.[11]
We also welcome the recognition by Government that work needs
to continue on implementing the Act. We hope our report will assist
the work of the Steering Group, and have directed recommendations
to the Steering Group where appropriate.
11. We also noted the publication in January
2014 of the Care Quality Commission's report on the implementation
of the Deprivation of Liberty Safeguards,[12]
which adopted a proactive tone in terms of the steps necessary
to improve implementation of the Mental Capacity Act. We welcome
this approach.
Overall finding
12. The vast majority of our witnesses considered
that the Act was a very significant and progressive piece of legislation,
with the potential to transform lives. Its principles remained
appropriate and relevant. It provides empowerment for those who
may lack capacity; a structure for decision-making for those who
do lack capacity; and protection for carers, families and professionals.
13. However, the overwhelming theme of the evidence
was that the Act was not well implemented. The principles of the
Act, which govern the empowering ethos, are not widely embedded.
The processes outlined in the Act—how capacity is to be
assessed, how a best interests decision is to be made—are
not widely known, and not adequately or consistently followed.
In general, the evidence suggested that these problems were greater
in health care than in social care settings.
14. Poor implementation appeared to be a function
of low awareness combined with poor understanding of the Act:
this was a consistent theme identified across professions, families,
carers and the wider public. Health and social care professionals
continue to struggle with how to apply the core principles in
practice. Greater levels of awareness and better understanding
will be required to deliver the "quiet revolution in public
attitudes and practice" which the Act was expected to usher
in.[13]
15. A consistent theme in the evidence was the
tension between the empowerment which the Act was designed to
deliver, and the tendency of professionals to use the Act for
safeguarding purposes. Prevailing professional cultures of risk
aversion and paternalism have inhibited the aspiration of empowerment
from being realised.
16. The presumption of capacity as set out in
the Act—a person must be assumed to have capacity unless
it is established that he does not—is widely misunderstood.
At times, it is used to justify non-intervention by health or
social care services, either erroneously or, in some cases, deliberately.
17. A further theme is the lack of consistent
monitoring of implementation of the Act. Limited data are collected,
and from those data that are available only limited inferences
can be drawn about the operation of the Act. There is insufficient
monitoring of how the Act affects Black and Minority Ethnic communities.
18. Ministers are ultimately accountable for
the successful implementation of the Act. The present arrangements
are unsatisfactory: there are many organisations involved, but
none has overall responsibility for implementation. The lack of
co-ordination of activities of the various organisations by a
single body is reflected in the patchy implementation of the Act.
To address this we recommend that a single independent body be
given overall responsibility for the implementation of the Act.
This independent body could be free-standing or be located within
an existing organisation; we consider its key responsibilities
in more detail in chapter 4.
19. The most significant exception to the overall
finding that the Act was considered to be a good piece of legislation
was the evidence on the Deprivation of Liberty Safeguards. Criticism
of the safeguards is widespread and, unlike the rest of the Act,
the criticism is not confined to implementation. The Deprivation
of Liberty Safeguards were considered to be poorly drafted and
poorly implemented. Our principal recommendation to address this
is to replace the safeguards with new legislative provisions.
The scope and content of the new provisions are considered in
chapter 7.
20. We set out our findings and, where relevant,
recommendations, in more detail in the subsequent chapters.
Keeping the Act under review
21. We consider it important that the matters
in this Report are kept under review, despite the fact that the
work of this Committee will end on publication of our Report.
22. 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.
1 HL Deb, 16 May 2013, col 543. Back
2
Committees have discretion to decline to accept submissions which
are deemed extreme or unsuitable for any reason. This may include
material which is grossly offensive, breaches confidence or makes
accusations about individuals. Committees do not accept as evidence
material that has already been published elsewhere. Back
3
The evidence is published in two volumes and can be found at http://www.parliament.uk/business/committees/committees-a-z/lords-select/mental-capacity-act-2005/publications/. Back
4
See appendix 9. Back
5
HL Deb, 21 May 2012 col 636. Back
6
Select Committee on Adoption Legislation, Adoption: Post-legislative
Scrutiny (2nd Report, Session 2012-13, HL 127), paragraph 13. Back
7
Q 320. Back
8
Q 1. Back
9
Letter from Norman Lamb MP, Minister of State for Care and Support,
6 November 2013. See appendix 4. Back
10
Q 312. Back
11
Letter from Norman Lamb MP, Minister of State for Care and Support,
28 November 2013. See appendix 5. Back
12
Care Quality Commission, Monitoring the use of the Mental Capacity
Act Deprivation of Liberty Safeguards in 2012/13, January
2014: http://collateral.vuelio.uk.com/RemoteStorage/CSCI/Releases/78/20140115%20DoLS.pdf. Back
13
HC Deb, 18 June 2004, cols 67-70WS. Back
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