Chapter 2: Background to the Mental
Capacity Act |
What did the Act intend to achieve?
23. The Mental Capacity Act was the culmination
of a very long process of consultation which began in 1989, when
the Law Commission undertook a study into the law for decision-making
on behalf of persons who lack capacity. A report followed in 1995
recommending that there should be a single comprehensive piece
of legislation making provisions for people who lack capacity.
A Green Paper was published in 1997,
followed by a White Paper in 1999,
which subsequently formed the basis of the draft Mental Incapacity
Bill. The draft Bill was published in June 2003 and referred to
a joint committee for pre-legislative scrutiny. The joint committee
reported in November of that year.
24. The evidence submitted to the pre-legislative
scrutiny committee showed that there was "widespread support"
for such a Bill,
and the Committee endorsed the Government's proposal for a "comprehensive
statutory framework to define mental capacity, help those lacking
it to make their own decisions where they can and enable sound
decisions to be made for them when they can not".
25. Finally, in June 2004 the Mental Capacity
Bill was introduced.
The Government said the Bill would "empower, protect and
support people who lack mental capacity" and that "professionals,
families and friends who care for people who lack mental capacity
need to understand more fully and more clearly their legal rights
26. The Government expected that the Bill would
"over time bring about a quiet revolution in public attitudes
There was recognition from the beginning, however, that the success
of the Act would depend on its implementation, which would in
turn depend on many individuals working across many different
settings. The pre-legislative scrutiny committee agreed that "legislation
can only go so far. It must be accompanied by changes in attitude
which recognise the rights of those lacking capacity and the need
to instil respect and good practice in dealing with them".
How did the Government set out
to achieve it?
27. The Government invested "significant
effort in implementation of the Act, in recognition of the scale
of cultural change and the changes in working practices
'Mental Capacity Implementation Programme,' delivered jointly
by the Ministry of Justice, the Department of Health, the Office
of the Public Guardian and the Welsh Assembly Government, featured
the publication of a series of booklets aimed at family, friends
and unpaid carers, and professionals in health and social care;
a DVD depicting real life stories; and a monthly implementation
update newsletter distributed to those in social, health care
and legal professions.
28. The Department of Health funded an implementation
team with a national manager and nine regional managers. Initially
planned for three years, the Department subsequently extended
the team's work to five. During this time the Department:
a series of training materials and audit tools;
support for Independent Mental Capacity Advocates (IMCAs);
local authorities to set up multi-agency Local Implementation
additional funding available to local authorities and the NHS
to support implementation (from 2008 onwards);
with partner organisations, including the NHS Confederation, Association
of Directors of Adult Social Services, the General Medical Council,
the British Medical Association and the voluntary sector; and
over 50 organisations to update policies, develop good practice
guidance, design audit tools and carry out research.
29. However, as Paul Gantley, former national
implementation manager at the Department of Health, told us, from
2007 there was "a quite different beast to contend with
deprivation of liberty safeguards".
The implementation programme after 2007 became focused on the
implementation of the new safeguards inserted into the Act by
the Mental Health Act 2007.
30. The Department of Health implementation programme
came to an end in 2011. Mr Gantley suggested that this was
"part of a wider decision" taken in the context of austerity
cuts, and that there was no considered assessment that the work
was complete. Some
witnesses argued that this support for implementation was withdrawn
31. Assessment of the effectiveness of the implementation
programme varied among witnesses. The MCA and MCA DoLS Team of
Cambridgeshire County Council said that the programme was effective
in providing leadership and guidance,
while Empowerment Matters CIC argued that it focused too much
on professionals and not enough on families and the wider public.
Hampshire County Council and Camden Safeguarding Adults Partnership
Board argued that social care professionals were prioritised over
other professional groups, including those in health care settings;
because, as the College of Social Work suggested, it was assumed
that medical professionals would understand the Act.
32. Even those who welcomed the programme questioned
its sustainability. The Law Society argued that it lacked an effective
means of monitoring implementation and ensuring compliance, and
that without these, "it is difficult to see how sustainable
change can be effected or appraised".
How did the Government intend
to measure success?
33. The regulatory impact assessment for the
Mental Capacity Act said that the Government's objective would
be "to ensure that the Bill is working as we expect it to,
making a real difference in the lives of vulnerable adults".
However, it conceded that "the most important aspects of
the Bill are quite difficult to measure".
Instead, the Government would want to reassure itself that "the
way in which people who lack capacity are helped to take decisions
reflects the principles of the Bill, i.e. people are first assumed
to have capacity, allowed to take their own decisions as far as
possible, and that others act in their best interests".
It concluded that:
"since the main and most widespread change we
seek is a difference in how decisions are taken and delivering
benefits to the wide group of vulnerable people, this is likely
to involve qualitative research as well as reviewing feedback,
e.g. MPs' letters and outcomes such as statistics on court
cases, complaints, reports in the media".
34. This view was echoed in the evidence provided
by the departmental officials at the outset of our inquiry.
However, there was no evidence of how, or indeed whether, the
Government sought to assess progress against the criteria identified
for success. When we asked the Minister for Care and Support,
Norman Lamb MP, how the Government had measured the way in
which the principles of the Act were being implemented in practice,
he conceded that the Government had "an incomplete picture"
but that he was "open to ideas of what more we can do to
gain a better understanding".
Consequently, it is not clear to us that the Government took any
measures to ascertain whether the Act met the criteria set out
35. 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. 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
36. We recommend that an independent body
with overall responsibility for implementation of the Act, be
given responsibility for ensuring such monitoring takes place.
Measuring public attitudes
37. From the introduction of the Bill to its
enactment, there was an expectation from Government and others
that a change in public attitudes and practice would develop as
a result of the Act. Indeed, the pre-legislative scrutiny committee
found that such a change would be essential to its successful
implementation (see paragraph 26).
But the plans for measuring such change were extremely vague and
we are not convinced, based on the evidence of officials and ministers,
that they were ever acted on.
38. It may be less easy to measure changes in
attitude and culture than it is to collect more concrete data,
but clearly there are ways to measure awareness and attitudes
among professionals and the wider public. This is no substitute
for monitoring actual implementation of the Act. However, if a
change in public attitudes is considered an important outcome
of the Act, and arguably the effective implementation of the Act
depends on it, measuring any such change may provide an indicator
39. 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.
14 Law Commission, Mental Incapacity, Law Com
231 (1995). Back
Who decides? Making Decisions on Behalf of Mentally Incapacitated
Adults, December 1997, Cm 3808,:
Making Decisions, October 1999, Cm 4465: http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/family/mdecisions/indexfr.htm. Back
Joint Committee on the Draft Mental Incapacity Bill, Draft
Mental Incapacity Bill (1st Report, Session 2002-03, HL 189-I):
Ibid., page 13. Back
Ibid., page 5. Back
The change of name from Mental Incapacity Bill to Mental Capacity
Bill was a key recommendation of the Joint Committee on the Draft
Mental Incapacity Bill; Ibid., recommendation 99. Back
HC Deb, 11 October 2004, col 22. Back
HC Deb, 18 June 2004, col 68WS. Back
Joint Committee on the Draft Mental Incapacity Bill, op.cit.,
recommendation 3. Back
Ministry of Justice. Back
Q 186. Back
Q 186. Back
Q 177. Back
MCA and MCA DoLS Team of Cambridgeshire County Council. Back
Empowerment Matters CIC. Back
Camden Safeguarding Adults Partnership Board; Hampshire County
Q 140. Back
The Law Society. Back
Department for Constitutional Affairs, Mental Capacity Act Regulatory
Impact Assessment. June 2004, p.19. Back
Q 1. Back
Q 314. Back
Joint Committee on the Draft Mental Incapacity Bill, Op.Cit,
recommendation 3. Back