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


Ministerial evidence session-3 December 2013

During the joint evidence session with Norman Lamb MP, I offered to write to the Committee on a number of matters on which the Committee sought further clarification.

The matters in question were the mediation pilot being undertaken by the Office of the Public Guardian (OPG) and the nature of the offences that had been prosecuted under section 44 of the Mental Capacity Act (MCA) 2005 and the Fraud Act 2006. I will deal with each in turn.

Mediation pilot

The pilot will allow the OPG to determine whether an in-house mediation service is a feasible option. The tender for the selection of the external partner who will assist the OPG in setting up a pilot scheme began in the late summer with the final selection taking place on 26 September, when Browne Jacobson solicitors in Nottingham were selected.

Cases where mediation may be particularly useful are those involving disagreement between family members of 'P' (the person lacking capacity), usually involving one or more attorneys of a Lasting Power of Attorney, (LPA), or a Court appointed Deputy over a decision required for P's best interests. The cases selected for inclusion in the pilot are likely to focus on the property and affairs issues in dispute between family members of P, though they may also include issues of health and welfare decision making, or a mixture of both.

The pilot will cover 15 to 20 cases which have been recommended by the Public Guardian (PG) as suitable for mediation. The mediation will be free to participants and it is hoped that they will be commenced in mid-January 2014, subject to the consent and availability of the involved parties. Mediation will take place via the telephone. Successful mediation will be particularly useful in cases where an attorney has been appointed as this will preserve the donors' choice of attorney.

Browne Jacobson will report to the Public Guardian by April 2014 with recommendations.

Nature of offences under section 44 of the MCA and the Fraud Act 2006.

Unfortunately whist my department is able to provide statistics of the numbers of people who have been convicted under section 44 of the MCA and under the Fraud Act, we do not hold details of the exact nature of the offences. My officials have liaised with the Crown Prosecution Service. They do not hold details of the nature of the offences either and to obtain the information would require them to manually search through the case files.

However, from evidence recently collated from media articles by my officials, it would appear that the offence in the MCA is indeed being used to prosecute those who have the care of the person lacking capacity and that the Fraud Act is being used to prosecute where attorneys and deputies have abused their position and misappropriated funds.

Clearly there is work to be done to ensure that more use is made of the offence in the MCA and my officials will further discuss the matter with the CPS and will also contact the Association of Chief Police Officers.

You have also asked me to address question 8:

The difficulty between providing the appropriate balance between safeguarding and protection has been a consistent theme in the evidence that we have heard. Given the understandable focus on safety within health and social services, how does the Government intend to prevent the empowering ethos of the MCA from being continually overshadowed?

My colleague Norman Lamb MP has provided a substantive answer to this question but I would add that we are aware of the need to ensure that the empowerment message is understood, and my officials will continue to work with officials at the Department of Health to see how this can be achieved.

I look forward to reading the Committee's recommendations in due course.

Tom McNally

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