Lords Committee says Mental Capacity Act is failing

A House of Lords inquiry report out today suggeststhat vulnerable adults are being failed by the MentalCapacity Act even though the laws are designed to protect and empower them. Thereport finds that social workers, healthcare professionals and others involvedin the care of vulnerable adults are not aware of the Mental Capacity Act, andare failing to implement it.

The Committee isrecommending that an independent body is given responsibility for oversight ofthe Act in order to drive forward vital changes in practice. The Committee alsofound that the controversial Deprivation of Liberty Safeguards (DoLS), insertedinto the Mental Capacity Act in 2007 by the Mental Health Act, are not fit forpurpose. The Committee is recommending that the DoLS be replaced withlegislation that is in keeping with the language and ethos of the MentalCapacity Act as a whole.

Chairman of theCommittee, Lord Hardie, said:

“TheCommittee believes that the Act is good and it needs to be implemented. What wewant to see is a change in attitudes and practice across the health and socialcare sector which reflects the empowering ethos of Act. To achieve this werecommend that overall responsibility for the Act be given to an independentbody whose task will be to oversee, monitor and drive forward implementation.

“Our otherkey finding concerns the Deprivation of Liberty Safeguards. The intention ofthe safeguards is to provide legal protection for people who are being deprivedof their liberty for their own safety. The evidence suggests that tens of thousandsof people are being deprived of their liberty without the protection of thelaw, and without the protection that Parliament intended. The Government needsto go back to the drawing board to draft replacement provisions that are easyto understand and implement, and in keeping with the style and ethos of theMental Capacity Act.”

The Committeefurther recommends that:

  • Government works with regulators and professional bodies to ensure the Act is given a higher profile in training, standard setting and inspections;
  • Government increases the staff resources at the Court of Protection to speed up handling of non-controversial cases;
  • Government reconsiders the provision of non-means tested legal aid to those who lack capacity, especially in cases of deprivation of liberty;
  • Local Authorities use their discretionary powers to appoint Independent Mental Capacity Advocates more widely than is currently the case;
  • Government addresses the poor levels of awareness and understanding of Lasting Powers of Attorney and advance decisions to refuse treatment among professionals in the health and social care sectors;
  • Government review the criminal law provision for ill-treatment or neglect of a person lacking capacity to ensure that it is fit for purpose.

The Committee also recommends that theHouse of Lords seek an update from the Government twelve months from now tofind out what they have done in response to their key recommendations.

To read the full report go to: http://www.parliament.uk/business/committees/committees-a-z/lords-select/mental-capacity-act-2005/news/mca-press-release—13-march-2014/