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

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 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: Back

13   HC Deb, 18 June 2004, cols 67-70WS. Back

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