The committee also found that the Deprivation of Liberty Safeguards (DoLS) are not fit for purpose and recommended that they are replaced with legislation that is in keeping with the language and ethos of the MCA as a whole.
In addition, the Committee wants to see an independent body set up to oversee the MCA in order to drive forward change in practice.
The MCA, introduced in 2007, identifies who can make decisions depending on the situation, and how they should go about this. Anyone who works with or cares for an adult who lacks capacity must comply with the MCA when making decisions or acting for that person, whether it is a life-changing event or everyday matter.
The DoLS aim to ensure people in care homes and hospitals are looked after in a way that does not inappropriately restrict their freedom. The safeguards should ensure that a care home or hospital only deprives someone of their liberty in a safe and correct way, and that this is only done when it is in the best interests of the person and there is no other way to look after them.Further reading: Care provider calls for reform of Mental Capacity Act
The Committee further recommends that:
• Government works with regulators and professional bodies to ensure the MCA is given a higher profile in training, standard setting and inspections
• Government increases 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 the House of Lords seek an update from the government in a year’s time to find out what they have done in response to their key recommendations.
The government is expected to respond to the report within 2 months, after which the Committee’s report and the government’s response will be debated in the House of Lords.
Implementing the MCA
Chairman of the Committee, Lord Hardie, said: “When the Act came into being, it was seen as a visionary piece of legislation, which marked a turning point in the rights of vulnerable people; those with learning difficulties, dementia, brain injuries or temporary impairment. The Committee is unanimous that this is important legislation, with the potential to transform lives.
“However, what is clear from the substantial volume of evidence we have received is that the Act is not working at all well. That is because people do not know about the Act, or do not understand it, even though many professionals have legal obligations under it. Those who may lack capacity have legal rights under the Act, but they are not being fulfilled. In many cases complying with the Act is treated like an optional add-on – nice to have, but not essential. In short, the Act is not being implemented.
“The Committee believes that the Act is good and it needs to be implemented. What we want to see is a change in attitudes and practice across the health and social care sector which reflects the empowering ethos of Act. To achieve this we recommend that overall responsibility for the Act be given to an independent body whose task will be to oversee, monitor and drive forward implementation. At present there are many bodies involved in implementing the Act, but there is no single organisation which is in charge. And the effect of that can be seen in the Act’s patchy implementation. Ministers would still be ultimately responsible for the Act, but placing an independent body in charge would provide a focus for activity to raise awareness and improve practice.”
'Start again' with DoLS
In addition, Lord Hardie outlined the Committee’s concerns with the DoLs. “The evidence suggests that tens of thousands of people are being deprived of their liberty without the protection of the law, and without the protection that Parliament intended. Worse still, in some cases the safeguards are being wilfully used to oppress individuals and to force decisions upon them, regardless of what actions may be in their best interests.
“The criticism of the safeguards extended to the legislative provisions themselves; we were told the provisions were poorly drafted, overly complex and bureaucratic. A senior judge described the experience of trying to write a judgment on the safeguards as feeling “as if you have been in a washing machine and spin dryer”. Even if implementation could be improved, the legislation itself is flawed.
“In the face of such criticism, the only option is to start again. The government needs to go back to the drawing board to draft replacement provisions that are easy to understand and implement, and in keeping with the style and ethos of the Mental Capacity Act.”
Beverly Dawkins, special advisor at Mencap, welcomed the report and its acknowledgement that people with a learning disability are being failed by poor implementation of the MCA.
“We welcome all the recommendations of the Committee, particularly to set up an independent body to drive forward implementation and the need to review and reform the Deprivation of Liberty Safeguards, which are currently not fit for purpose,” she said.
“Alongside work to ensure the law is embedded in practice, we want serious consideration given as to what sanctions should be applied, when there is failure to follow the law.
“We are concerned that professional regulators are not taking failures to adhere to the MCA seriously enough. No single health care professional has been properly held to account for failing to adhere to the Mental Capacity Act – even though the consequences can, and have, been life threatening and even fatal. For real change to happen, professionals need to know that there will be serious repercussions for failures to carry out their legal duties.”