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 4: Addressing poor implementation of the act

111. In light of the evidence regarding the poor implementation of the Act, we sought to understand who had responsibility for it, now that the Government's implementation programme had ceased. The answer appeared to be that no-one had specific or overall responsibility for the Act. Three witnesses summed up the dilemma: Dr Ruth Allen observed that "there is something about the way the MCA is regulated, monitored and the governance around it that is weak".[171]The Lancashire County Council DoLS team concurred; whereas the Act "should underpin and influence everything we do … it is often seen as a bit of an 'add on'".[172]The British Institute of Learning Disabilities pointed to the apparent lack of enforcement, since there appeared "to be no structure by which non-compliance with [the Act] is currently being highlighted or addressed".[173]

112. One reason for this may be the wide range of bodies with varying levels of responsibility for implementation and enforcement of the Act. They include the Care Quality Commission, the Equality and Human Rights Commission, the Local Government Ombudsman, the Parliamentary and Health Service Ombudsman and the professional regulators for the health and care professions, i.e. the General Medical Council, the Nursing and Midwifery Council and the Health and Social Care Professions Council. We also heard evidence from the medical Royal Colleges about their role in setting and maintaining standards in health care. Commissioners of services—specifically local authorities, clinical commissioning groups and NHS England—were frequently cited as central to better implementation. The Social Care Institute for Excellence was cited as a source of guidance and many witnesses pointed to the importance of the voluntary sector in disseminating information to service users and their families. The wide range of bodies involved in implementing the Act, would be felt most acutely by individuals responsible for complying with it, since they will frequently be subject to more than one regulatory regime. For example, a nurse would be subject to inspection by the CQC, and regulation by the Nursing and Midwifery Council—as well as receiving guidance from professional bodies such as the Royal College of Nursing.

113. 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.

114. 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.

115. 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.

116. 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.

117. 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.

118. We make further recommendations concerning the responsibilities of the proposed independent body throughout this and subsequent chapters.

Oversight of organisations

119. Although the Code of Practice specifically identifies the Parliamentary and Health Service Ombudsman (PHSO) and the Local Government Ombudsman as routes for complaint, only the PHSO submitted evidence and very few submissions discussed its role. Instead, the Care Quality Commission (CQC) was the most frequently cited inspectorate. This is unsurprising, given the role of the CQC to inspect and register health and social care services in England, and its statutory role to monitor and report on the implementation of the deprivation of liberty safeguards.[174]

120. Officials and Ministers placed considerable emphasis on the role of the CQC in driving better implementation of the Mental Capacity Act.[175] The CQC explained that while it had "no direct powers to enforce the MCA," the Health and Social Care Act 2008 had very similar requirements in relation to patient involvement, choice, decision-making and care planning.[176] Therefore failure to implement the Mental Capacity Act could be taken into account when assessing compliance with the Health and Social Care Act, and could lead to regulatory and enforcement action such as a warning notice or prosecution.[177] Despite not having a statutory role in relation to local authorities when acting as supervisory bodies, the CQC was keen on promoting a "collaborative approach based on sharing good practice".[178] However, where necessary it had contacted individual authorities to remind them of their responsibilities.[179]

121. We were told of the positive impact which the regulator could have on improving performance: Elmari Bishop, lead for the Mental Capacity Act at the South Essex Partnership University NHS Foundation Trust, described how a few bad inspections gave "the final push" to gaining support internally to far-reaching changes in implementing the Act at the Trust (see Box 6, A case study in what works).[180]

122. The College of Social Work, however, summed up the views of many witnesses when it said that: "while acknowledging that theoretically the CQC was well-placed to regulate, some felt that staff at the CQC had insufficient knowledge of the MCA to act appropriately".[181] Age UK and Kate Beynon, a best interests assessor in Northamptonshire County Council suggested that CQC inspectors lacked sufficient knowledge of the safeguards.[182] The Royal College of Nursing argued that "the CQC could do more within their inspection routines to examine the scope of how the MCA is used by health professionals".[183]

123. Concern was expressed that the CQC's role in relation to the deprivation of liberty safeguards was limited to monitoring and reporting.[184] Alzheimer's Society argued that there was a need for greater policing of local authority responses to authorisation requests,[185] which was not currently part of the role of the CQC.[186] BASW agreed that the CQC's inspection role should be extended to cover the supervisory body functions of local authorities.[187] The Law Society also argued for increased powers for the CQC,[188] and the Judith Trust wanted to see parity with the powers of the CQC under the Mental Health Act.[189] The CQC itself, though, felt that it had sufficient powers, as did the Government.[190] Dr Regnard, a consultant in palliative care medicine suggested that "additional powers would not be required if non-compliance was exposed and it was made clear how and why this breaches current legislation".[191]

124. There was some suggestion that the CQC recognised the criticisms levelled at it. Changes were expected to the regulations which set out the standards against which the CQC inspects, and this presented an opportunity to ensure "that the principles of the [Mental Capacity Act] sit at the heart of CQC's understanding of care quality in the new regulatory models".[192] David Behan, Chief Executive of the CQC, promised us he would "ensure that mental capacity is built into the way that we conduct our inspections—whether of hospital services, community healthcare services or … adult social care services".[193] Since we took evidence from Mr Behan the Department of Health has published a consultation on proposals to change the CQC registration regulations.[194] None of our witnesses referred to this document as it was published after our deadline for submissions. However, in light of the evidence we have received we believe it will be important for the standards to reflect, as far as possible, the empowering ethos of the Act, with a particular emphasis on supported decision-making.

125. We note the publication on 15 January by the CQC of its annual report into the operation of the deprivation of liberty safeguards.[195] In his foreword Mr Behan acknowledged that "the Act is still not understood and implemented consistently across health and social care services. This is not good enough".[196] The report conceded that "it is difficult to avoid the conclusion that some people in care homes and hospitals may be subject to restraint without the full protection of the law".[197] In response the CQC has committed itself to a new approach in ensuring that health and care providers comply with the Mental Capacity Act. It has undertaken to capture the experiences of those directly affected by deprivations of liberty, improve training of its inspectors, build on its relationships with local authorities to improve compliance, and promote better awareness and understanding of the safeguards in care homes and hospitals. The three Chief Inspectors "will ensure that MCA principles are hardwired into our new model for regulation and inspection in all services registered with CQC".[198]

126. 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.

127. 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.

Training and oversight of professionals: the role of professional regulators and medical Royal Colleges

128. In health and care settings the medical Royal Colleges, and the professional regulators for the different health and care professions, should be well placed to influence practice. We heard from the Academy of Medical Royal Colleges, the Royal College of GPs, the Royal College of Psychiatrists, the College of Emergency Medicine, the General Medical Council and the Health and Care Professions Council. With the exception of the Royal College of Psychiatrists, we were not convinced that the Mental Capacity Act was a priority for any of these bodies and this was reflected in the evidence.

129. While the professional regulators, such as the GMC, have important regulatory functions and the ability to sanction those who fail to meet professional standards, they also have a vital education and standard setting role. Mr Paul Buckley, Director of Education and Standards at the GMC, summed up the regulator's function as "to protect, promote and maintain the health and safety of the public by ensuring proper standards in the practice of medicine".[199] Mr Buckley explained that the Act featured in the GMC's work on standards, education, outreach and ultimately their fitness to practice determinations.[200] The Health and Care Professions Council said that while the vast majority of professionals met the high standards required throughout their professional careers, lessons could be learned from those that did not, and from feeding these lessons back into the universities and the professional bodies to improve standards.

130. The Royal Colleges told us they played an active role in supporting health and care professionals to understand and implement the Act. Professor Bailey, representing the Academy of Medical Royal Colleges, told us that the Act did appear in the current foundation programme curriculum, but that she had "had a relook at it, and I do think the emphasis is on mental health. There could be a stronger emphasis on capacity".[201] The Royal College of GPs told us that their core curriculum and membership examination included details of the Act, "along with clinical issues associated with patients with impaired cognition and how these might be addressed in practice".[202] In addition, we were told that the Royal College of GPs had developed proposals to extend GP training which, if implemented, could "ensure that future GPs are even better equipped to comply with the Act".[203]The additional training was expected to include "further measures to help to train incoming GPs to effectively communicate with patients with communication difficulties, involve carers, relatives and friends, within the bounds of confidentiality, to develop professional judgment around lack of capacity and long-term care planning".[204] Dr Apakama of the College of Emergency Medicine told us that the Act was part of the curriculum and formally tested at Membership and Fellowship examinations.[205]

131. Dr Chalmers, of the Royal College of Psychiatrists, described the work of her College on the Mental Capacity Act, which was, perhaps unsurprisingly, centred on mental health. She told us that the College had been working with the CQC to look at "what does "good" mean in clinical practice and setting standards"[206] including in relation to the Mental Capacity Act, but that this had proved to be a challenge "because, unlike the Mental Health Act, where there are clear things that you can count and then follow up—for example the number of detentions … —the Mental Capacity Act is more about a philosophy of care and a spirit of enablement".[207]

132. Mencap told us they had undertaken work with Royal Colleges and health care professionals to develop a charter for Clinical Commissioning Groups that spelt out "the nine key activities that all health care professionals should do to ensure that there is equal access to health for people with learning disabilities", one of which related to the Act.[208] The Department of Health said that "the Royal Colleges, particularly the Royal College of Psychiatrists, have all been very heavily involved in training their relevant membership groups".[209]

133. However, the evidence we set out in chapter 3 suggests that such activities have been insufficient to embed the Act in day-to-day practice. We note that GPs, in particular, were identified as having a poor understanding of the Act. Sense, the charity for deaf-blind people, reported an incident of a GP who attempted to charge for the additional time taken to explain to the person what was involved in a blood test to obtain consent.[210] Safeguarding Essex said that "GPs seem reluctant to accept that the legislation appertains to them as practitioners and frequently appear to either ignore it or refer to Social Care for guidance".[211] We already noted the case study examples provided by the CIPOLD team where failure by GPs to follow the Act had led to avoidable deaths (paragraph 77). Dr Heslop, principal investigator of CIPOLD, argued that training should be targeted at GPs as well as other non-specialist health service practitioners.[212] The lack of familiarity of health care staff, including GPs, with advance decisions to refuse treatment is considered in chapter 5; we note some concerns in paragraph 195.

134. Some witnesses questioned the extent to which the Royal Colleges and the professional regulators were fulfilling their roles in relation to the Act. Age UK argued that:

"There is a case for professional health and care regulators taking a greater role in relation to the MCA. For example there is reference to the Act included within the GMC's 'Good Medical Practice' guidance but we would suggest that it could also be part of the revalidation process for doctors".[213]

135. Dr Claud Regnard argued for the Royal Colleges and professional regulators to emphasise the central role of the Act in decision-making, including the importance of determining best interests as set out in the Act, as distinct from clinical best practice judgments. He also called for compliance with the Act to be a requirement of practice and continued employment as a health or care professional.[214] Mencap expressed disappointment at "the failure of the GMC to take to tribunal at least three cases that we have referred to them where doctors have … failed against the Mental Capacity Act".[215] This had resulted in unlawful actions that "do not seem to be met with appropriate sanctions,"[216]leaving the impression that professional regulators were not taking failures to adhere to the Act seriously enough.[217]

136. Under section 1 of the Health and Social Care Bill 2012 the Secretary of State for Health is required to promote a comprehensive health service designed to secure improvement in a) the physical and mental health of the people of England, and b) the prevention, diagnosis and treatment of physical and mental illness. This recognition in statute of the equal responsibility of the state towards physical and mental health has been termed 'parity of esteem'. We are concerned that this commitment is undermined by the current difficulties in recruiting medical students into academic psychiatry. We note the report by the Academy of Medical Sciences, 'Strengthening Academic Psychiatry', published in March 2013, which identified the barriers to recruiting trainee academic psychiatrists. Professor Sue Bailey, President of the Royal College of Psychiatrists, said in response to the report's findings, that strengthening psychiatry as a speciality was central to delivering parity between physical and mental health.[218] Increasing research into mental illness was considered an important target by the Academy of Medical Sciences—although mental illness accounts for 15% of the disease burden, mental health research accounts for only 5%-6% of the UK's total health research spending.[219] Not unrelated to the barriers to recruiting students into academic psychiatry is the worrying decline in academic posts in psychiatry—the overall number of which has fallen 26.8% since 2000.[220] Although not everyone who lacks capacity has mental health problems, the poor implementation of the Mental Capacity Act by health professionals is, to some extent, symptomatic of a wider marginalisation of mental health issues. We therefore support efforts by the Academy of Medical Sciences and the Royal College of Psychiatrists to achieve parity of esteem, not least by ensuring adequate training, research and leadership in psychiatry.

137. 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.

138. 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.

139. 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.

140. 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.

141. 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.

142. 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.

Commissioning

143. The role of commissioners of health and social care in identifying and acting on poor practice was highlighted by the Department of Health[221] and Dr Margaret Flynn, former Chair of the serious case review into Winterbourne View.[222] The British Institute of Human Rights argued that commissioners of services are integral to ensuring the Act is correctly implemented and applied in practice. For this to happen commissioners needed to be "properly trained and equipped"[223] to ensure their decisions and practices supported people who lacked capacity. Mencap made the same argument.[224]

144. The CQC reported that commissioners and providers had a low understanding of the Act.[225] However, we heard evidence of good practice in some local authority areas. The Association of Directors of Adult Social Services (ADASS) endorsed work underway in the West Midlands. Lorraine Currie, representing ADASS West Midlands Regional DoLS Leads group, described work that embedded the Act into contractual requirements with care providers. As part of this, free training was provided to care home staff. High levels of staff turnover in the care sector meant that training was provided to "a couple of thousand people each year from hospitals and care homes as well as the local authority".[226] Ongoing training and support was seen as important because "the Mental Capacity Act is ever changing. Our understanding of it is ever changing, and it evolves in different directions, so we offer them as much support as we can in order to ensure best practice".[227] This practice was not isolated—a team of best interests assessors from Greenwich reported free training being increasingly provided by commissioners, with local authority teams gradually taking on a greater role in ensuring care providers understood and applied the Act, including the deprivation of liberty safeguards.[228]

145. Terry Dafter of ADASS expanded on the role of commissioners in monitoring good practice once contracts were in place:

"you do have to build it into your contracting arrangements; you have to make sure people are trained within that home and that there is leadership from the top—that the manager and the deputy manager are well trained and well versed in the Act. You have to check out the number of referrals you are getting per home and worry about a home that you do not necessarily get any referrals from and equally worry about ones where there is perhaps an overzealous application of the Act. You start to ask the people who monitor your contracts to bear those figures in mind along with other reporting figures that we take around the sector".[229]

146. The role of commissioners in driving better performance was also identified by Elmari Bishop in relation to the experience of the South Essex Partnership University NHS Foundation Trust:

"Our commissioners … also caught on to the whole idea of the Mental Capacity Act and DoLS, and they started asking us every three months to report on what we were doing in that regard: what training we were doing, how many assessments we had done, what we had done to improve staff understanding, how we were monitoring it, and how often we were auditing it".[230]

147. The importance of health sector commissioners taking on this role was touched on by Dr Heslop.[231] The CIPOLD inquiry recommended that NHS England and clinical commissioning groups ensure that they have adequate oversight of "the appropriate Mental Capacity Act safeguarding arrangements" and that "together with regulators they must enforce the Act".[232]

148. Officials from the Department of Health were clear that NHS England had a responsibility, through the NHS Mandate, to "demonstrate progress in continuing to improve safeguarding practice in the NHS. This includes improving the understanding and implementation of the Mental Capacity Act".[233] However, the new (or 'refreshed') Mandate published in November 2013 still did not contain reference to the Mental Capacity Act. When questioned on this the Minister for Care and Support pointed to work underway to further parity of esteem between mental and physical health services. However, he acknowledged that it would have been helpful to have referred to implementation of the Mental Capacity Act as a priority.[234]

149. NHS England put it to us that they had "put leadership for safeguarding and the Mental Capacity Act at every level of the system" in the recent changes to NHS commissioning. This involved the nomination of Mental Capacity Act and safeguarding leads in each of the 211 clinical commissioning groups, a medical director with responsibility for safeguarding in each of the 27 area teams, directors of nursing responsible for safeguarding in partnership with a medical director in each of the four regions, and national level accountability for safeguarding and the Mental Capacity Act vested in the Chief Nursing Officer.[235] These structures chime with the CIPOLD inquiry recommendations, and the Care Quality Commission specifically welcomed the requirement that clinical commissioning groups have a named lead on the Act.[236]

150. Nevertheless, two features of this description cause concern. First, it demonstrates the extent to which the Act is intrinsically linked with safeguarding within NHS systems and structures. This is disconcerting in light of the evidence that we received about the imbalance between empowerment and paternalism in some health care settings. Second, the description provided is of structures rather than practice. NHS England told us "We have done some rapid appraisals about where we are in terms of capability, confidence, training, etc,"[237] with a number of Clinical Commissioning Groups but these appraisals did not appear to have provided robust evidence. There appeared to be, in general, an absence of data concerning actual practice on the ground, and we regret this. We note and endorse the recommendation by the CQC in its report on the deprivation of liberty safeguards 2012/2013, that NHS England should include expectation of the effective use of the deprivation of liberty safeguards into standard contracts for providers.[238]

151. 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. 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.

152. 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.

153. 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.

Access to advice and information on the MCA

154. Although we recognise that improving understanding of the Act requires more than improved guidance, it was noticeable how frequently witnesses called for improved access to information, despite the range of sources already available. The original Code of Practice to the Mental Capacity Act was published in 2007, with a supplementary Code for the deprivation of liberty safeguards following in 2008. Other sources of information include the Social Care Institute for Excellence, the Office of the Public Guardian and the Court of Protection. In addition, many local authorities have produced tailored information, as have many voluntary sector organisations.

THE CODES OF PRACTICE

155. Several witnesses argued that the Codes were out of date, calling for them to be updated in light of experience and case law.[239] Concern was also expressed that the current Codes are unwieldy,[240] and a number of witnesses advocated merging the main Code and the supplementary Code for the deprivation of liberty safeguards into a single, accessible, Code of Practice.[241] Mencap proposed tailored codes of practice for particular audiences, similar to the various Codes of Practice that accompany the Equality Act 2010, to make them relevant and accessible to practitioners in different fields. It also called for the Code to be made accessible to people directly affected by the Act, in order to bring it into line with the UK's commitments under the UN Convention on the Rights of Persons with Disabilities.[242] This appeared to be supported by evidence from Mr Simon Cramp, an adult with learning disabilities, who previously gave evidence to the pre-legislative scrutiny committee. In his view the Codes of Practice were not used "because they are big documents with lots of detail".[243] He suggested that instead "perhaps the key areas of the act that are used most should be a pocket book that is issued at the government expense in hard copy".[244]

156. Unsurprisingly, given the evidence concerning the failure to implement the principles of the Act, many suggestions focused on improving practice in relation to those principles. As well as the use of more sophisticated case examples to assist with assessing capacity suggested by Dr Heslop, others suggested the functional approach to capacity could be promoted through the Code, as could "the concept of a capacitous unwise decision".[245] BASW suggested using the Code to ensure the appropriate balance between adult safeguarding and the Act.[246] More specifically, Mencap called for greater clarity about the meaning of 'serious medical treatment'. It argued that it should include non-emergency Do Not Resuscitate Orders, as well as any decision taken not to treat or investigate.[247]

157. Despite these suggestions, many witnesses praised the Code of Practice, which the British Medical Association described as "clear, practically-oriented and readable".[248] The Hft's Family Carer Support Service said that "The Code of Practice is a long document, but it is very well written and offers lots of good examples of how the Act should work in practice".[249]

158. Reviewing the Code of Practice was not in itself considered an answer to poor practice. The Department of Health acknowledged that "We could review the code of practice and the Act and spend a lot of resources and time doing that and not make one jot of difference to people on the ground".[250] Irwin Mitchell LLP argued that the reason that the principles were sometimes misunderstood was because the Code of Practice was rarely read "even by social workers, GPs and other practitioners".[251] This appeared to be supported by evidence from the GMC that they were working on providing information in a simpler way, rather than "presenting doctors with a tome on the Mental Capacity Act".[252] Clearly, the information needs of many of those who are affected by the Act, either professionally or personally, are not being met by the Codes.

159. 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.

160. 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.

161. 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.

162. 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.

BOX 6

A case study of what works

The submission from the South Essex Partnership University NHS Foundation Trust (SEPT) described the experience of changing the practice and culture within a single Trust in relation to the Mental Capacity Act. The Trust had faced the potential risk of substantial damages as a result of possibly illegal detentions due to a failure to apply the deprivation of liberty safeguards.[253] Following an improvement plan there was evidence of an increase in activity under the Act of 403%, and in applications under the deprivation of liberty safeguards of 1408%.[254] While recognising that more work needed to be done to improve the quality of implementation, the Trust told us that:

"In our organisation we have witnessed exceptionally good practice in this area, which provides concrete proof that, if applied correctly, the MCA can really make a difference and achieve its aims to the benefit of some of the most vulnerable people in society".[255]

Emphasising the importance of both leadership and management of cultural change, Elmari Bishop, the lead for the Act in the Trust, explained to us the process for implementing a two-year action plan, starting in August 2011.

The action plan included the re-writing of policies and an intensive training and support programme rolled out across the organisation, approved and supported by the Executive Team. Support from the Board of Directors and allocation of resources was not, in itself, sufficient to overcome resistance from staff who felt that their professional decision-making abilities were being challenged. Implementation of the Act was not simply about implementing new legislation, it was about "managing change, managing resistance to change and getting support from all levels." They began by explaining the Act in terms professionals understood, such as consent to treatment and the legal authority to keep a person on the ward and provide treatment. They then gained support from different professional groups: "as soon as we got our medical director and some of the key doctors in our organisation on board, they started to drive the message forward." This support was crucial to achieving change. Equally important was the impact of "a few bad CQC inspections" and increased attention from commissioners to the action being taken.[256]

The Trust told us it was continuing its work, with the next phase focusing on implementation of the Act in community settings.

171 Q 139. Back

172 Lancashire County Council DoLS Team. Back

173 British Institute of Learning Disabilities. Back

174 The Mental Capacity Act (Deprivation of Liberty: Monitoring and Reporting; and Assessments - Amendment) Regulations 2009, laid under paragraph 162 of schedule A1 of the Mental Capacity Act 2005. Back

175 QQ 19, 21 and 314-315. Back

176 Care Quality Commission. Back

177 Ibid. Back

178 Ibid. Back

179 Ibid. Back

180 Q 265. Back

181 The College of Social Work. Back