Mental Capacity Act failing vulnerable, says Lords

Vulnerable adults, including those with dementia, are being failed by the Act designed to protect and empower them according to a new report.

The House of Lords Committee, established to assess how well the Mental Capacity Act (MCA) is working in practice, found that social workers, healthcare professionals and others involved in the care of vulnerable adults are not aware of the MCA and are failing to implement it correctly.

The Committee is recommending that an independent body is given responsibility for the oversight of the Act in order to drive forward vital changes in practice.

The Committee also suggested that DoLs (Deprivation of Liberty Safeguards) – intended to provide legal protection to those who are being deprived of their liberty for their own safety – are not fit for purpose and should be replaced with legislation more in keeping with the language and ethos of the MCA as a whole.

Chairman of the Committee, Lord Hardie, said:”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.

“Our other key finding concerns the Deprivation of Liberty Safeguards. The intention of the safeguards is to provide legal protection for people who are being deprived of their liberty for their own safety. 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. 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.”

The Committee further 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 the House of Lords seek an update from the Government twelve months from now to find out what they have done in response to their key recommendations.

The Mental Health Foundation welcomed the report. It said:”We agree and endorse the Inquiry’s overall view that the MCA is a good piece of legislation.

“We particularly welcome the report’s recommendation of setting up an independent body with responsibility for the oversight of the implementation of the MCA. We would be keen to work with this body to ensure greater awareness and understanding of the act in the health and social care sector.

“While we agree with the report’s view that the act is well regarded, we acknowledge the real issues around its implementation – and in particular with the Deprivation of Liberty Safeguard (DoLS) – are issues that need to be urgently resolved.

“It has been over seven years since the Act came into force and we urge the Government to take on board the report’s recommendations and ensure that the rights conferred by the Act, for some of the most vulnerable people in society, are protected.”

To download the report, visit:
http://www.publications.parliament.uk/pa/ld201314/ldselect/ldmentalcap/139/139.pdf