House of Lords - Mental Capacity Act 2005: post-legislative scrutiny - Select Committee on the Mental Capacity Act 2005

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

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.[14] A Green Paper was published in 1997,[15] followed by a White Paper in 1999,[16] 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.[17]

24. The evidence submitted to the pre-legislative scrutiny committee showed that there was "widespread support" for such a Bill,[18] 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".[19]

25. Finally, in June 2004 the Mental Capacity Bill was introduced.[20] 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 and responsibilities".[21]

26. The Government expected that the Bill would "over time bring about a quiet revolution in public attitudes and practice".[22] 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".[23]

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 … required".[24] The '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:

· commissioned a series of training materials and audit tools;

· funded support for Independent Mental Capacity Advocates (IMCAs);

· invited local authorities to set up multi-agency Local Implementation Networks;

· made additional funding available to local authorities and the NHS to support implementation (from 2008 onwards);

· worked 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

· grant-funded 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 …the deprivation of liberty safeguards".[25] 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.[26] Some witnesses argued that this support for implementation was withdrawn too soon.[27]

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,[28] while Empowerment Matters CIC argued that it focused too much on professionals and not enough on families and the wider public.[29] 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;[30] because, as the College of Social Work suggested, it was assumed that medical professionals would understand the Act.[31]

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".[32]

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".[33] However, it conceded that "the most important aspects of the Bill are quite difficult to measure".[34] 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".[35] 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".[36]

34. This view was echoed in the evidence provided by the departmental officials at the outset of our inquiry.[37] 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".[38] Consequently, it is not clear to us that the Government took any measures to ascertain whether the Act met the criteria set out above.

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 Act applies.

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).[39] 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 of success.

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

15 Who decides? Making Decisions on Behalf of Mentally Incapacitated Adults, December 1997, Cm 3808,:

http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/menincap/meninfr.htm. Back

16 Making Decisions, October 1999, Cm 4465: http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/family/mdecisions/indexfr.htm. Back

17 Joint Committee on the Draft Mental Incapacity Bill, Draft Mental Incapacity Bill (1st Report, Session 2002-03, HL 189-I): http://www.publications.parliament.uk/pa/jt/jtdmi.htm. Back

18 Ibid., page 13. Back

19 Ibid., page 5. Back

20 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

21 HC Deb, 11 October 2004, col 22. Back

22 HC Deb, 18 June 2004, col 68WS. Back

23 Joint Committee on the Draft Mental Incapacity Bill, op.cit., recommendation 3. Back

24 Ministry of Justice. Back