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".
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'".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
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 servicesspecifically
local authorities, clinical commissioning groups and NHS Englandwere
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
Councilas 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.
120. Officials and Ministers placed considerable
emphasis on the role of the CQC in driving better implementation
of the Mental Capacity Act.
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.
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.
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".
However, where necessary it had contacted individual authorities
to remind them of their responsibilities.
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).
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".
Age UK and Kate Beynon, a best interests assessor in Northamptonshire
County Council suggested that CQC inspectors lacked sufficient
knowledge of the safeguards.
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".
123. Concern was expressed that the CQC's role
in relation to the deprivation of liberty safeguards was limited
to monitoring and reporting.
Alzheimer's Society argued that there was a need for greater policing
of local authority responses to authorisation requests,
which was not currently part of the role of the CQC.
BASW agreed that the CQC's inspection role should be extended
to cover the supervisory body functions of local authorities.
The Law Society also argued for increased powers for the CQC,
and the Judith Trust wanted to see parity with the powers of the
CQC under the Mental Health Act.
The CQC itself, though, felt that it had sufficient powers, as
did the Government.
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
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".
David Behan, Chief Executive of the CQC, promised us he would
"ensure that mental capacity is built into the way that we
conduct our inspectionswhether of hospital services, community
healthcare services or
adult social care services".
Since we took evidence from Mr Behan the Department of Health
has published a consultation on proposals to change the CQC registration
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.
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".
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".
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".
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".
Mr Buckley explained that the Act featured in the GMC's work
on standards, education, outreach and ultimately their fitness
to practice determinations.
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".
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".
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".
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
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.
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"
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 upfor example the number of detentions
the Mental Capacity Act is more about a philosophy of care
and a spirit of enablement".
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.
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".
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.
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".
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.
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".
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.
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
had resulted in unlawful actions that "do not seem to be
met with appropriate sanctions,"leaving
the impression that professional regulators were not taking failures
to adhere to the Act seriously enough.
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.
Increasing research into mental illness was considered an important
target by the Academy of Medical Sciencesalthough mental
illness accounts for 15% of the disease burden, mental health
research accounts for only 5%-6% of the UK's total health research
unrelated to the barriers to recruiting students into academic
psychiatry is the worrying decline in academic posts in psychiatrythe
overall number of which has fallen 26.8% since 2000.
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
139. In particular, we recommend that the
that there is leadership in psychiatry within all medical schools
in order to give a higher profile to mental health;
proper emphasis on the Mental Capacity Act in its publication
'Good Medical Practice';
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
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.
143. The role of commissioners of health and
social care in identifying and acting on poor practice was highlighted
by the Department of Health
and Dr Margaret Flynn, former Chair of the serious case review
into Winterbourne View.
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"
to ensure their decisions and practices supported people who lacked
capacity. Mencap made the same argument.
144. The CQC reported that commissioners and
providers had a low understanding of the Act.
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
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".
This practice was not isolateda 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.
145. Terry Dafter of ADASS expanded on the role
of commissioners in monitoring good practice once contracts were
"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 topthat
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
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
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".
147. The importance of health sector commissioners
taking on this role was touched on by Dr Heslop.
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".
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".
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.
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.
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.
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,"
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.
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
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
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.
Concern was also expressed that the current Codes are unwieldy,
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.
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.
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".
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".
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".
BASW suggested using the Code to ensure the appropriate balance
between adult safeguarding and the Act.
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.
157. Despite these suggestions, many witnesses
praised the Code of Practice, which the British Medical Association
described as "clear, practically-oriented and readable".
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".
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".
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".
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
the information needs of many of those who are affected by the
Act, either professionally or personally, are not being met by
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
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
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. 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%. 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".
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.
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
Lancashire County Council DoLS Team. Back
British Institute of Learning Disabilities. Back
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
QQ 19, 21 and 314-315. Back
Care Quality Commission. Back
Q 265. Back
The College of Social Work. Back
Age UK; Kate Beynon PSW/BIA/AMHP (Safeguarding Adults Team, Northamptonshire
County Council). Back
Royal College of Nursing. Back
Wigan Family Welfare; Irwin Mitchell LLP. Back
Alzheimer's Society. Back
Care Quality Commission. Back
British Association of Social Work. Back
The Law Society. Back
The Judith Trust. Back
Ministry of Justice. Back
Claud Regnard FRCP (Consultant in Palliative Care Medicine, St
Oswald's Hospice). Back
Care Quality Commission. Back
Q 197. Back
Department of Health, Introducing Fundamental Standards,
consultation on proposals to change CQC registration regulations,
23 January 2014: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/274715/Introducing_Fundamental_Standards_-_a_Consultation.pdf. Back
Care Quality Commission, Monitoring the use of the Mental Capacity
Act Deprivation of Liberty Safeguards in 2012/13, January
2014: http://www.cqc.org.uk/sites/default/files/media/documents/dols_2014.pdf. Back
Q 210. Back
Q 210. Back
Q 153. Back
Royal College of General Practitioners. Back
Q 153. Back
Q 6. Back
Q 48. Back
Safeguarding Essex. Back
Q 72. Back
Age UK. Back
Claud Regnard FRCP (Consultant in Palliative Care Medicine, St
Oswald's Hospice). Back
Q 89. Back
Royal College of Psychiatry press release, College responds
to strengthening academic psychiatry report, 29 March 2013:
The Academy of Medical Sciences, Strengthening Academic Psychiatry
in the UK, March 2013, p9: http://issuu.com/acmedsci/docs/academy_psychiatryfinal. Back
Q 13. Back
Q 57. Back
British Institute of Human Rights. Back
Care Quality Commission. Back
Q 179. Back
Q 179. Back
Royal Borough of Greenwich, Best Interests Assessors Forum. Back
Q 179. Back
Q 265. Back
Q 56. Back
Ministry of Justice and Department of Health. Back
Q 322. Back
Q 221. Back
Q 209. Back
Q 221. Back
Care Quality Commission, Op. Cit. January 2014, p 51. Back
British Psychological Society; British Association of Social Workers;
London Borough of Newham Adults Social Care; London MCA/DoLS Network. Back
Housing and Social Care Services, London Borough of Camden. Back
Mind; British Association of Social Workers. Back
Simon Cramp. Back
Professor Julian Hughes, Professor John Bond, Dr Helen Greener,
Dr Stephen J. Louw, Marie Poole, Professor Louise Robinson and
Charlotte Emmett. Back
British Association of Social Workers. Back
British Medical Association. Back
Q 12. Back
Irwin Mitchell LLP. Back
Q 211. Back
Q 266. Back
The South Essex Partnership University NHS Foundation Trust (SEPT). Back
Q 265. Back