The House of Lords Committee appointed to consider the MCA 2005 has now reported. After a mammoth evidence gathering exercise (the transcripts of the oral evidence received and the written evidence submitted ran to almost 2,000 pages [note]), the Committee has provided a damning report upon almost all aspects of the implementation of the MCA 2005.
(8) The 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 recommended 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.
For a much longer discussion and commentary, see this post here.
The report makes in many ways profoundly depressing reading. I know from personal experience both from involvement in proceedings before the Court of Protection and from training work that there are many very dedicated professionals (of all backgrounds) who are trying to implement the MCA 2005 in different settings. My work at the moment in drafting guidance on how to act as a litigation friend has brought me into contact with people whose dedication and desire to inform themselves further is proving inspirational.
I have also, however, come across (almost) as many horror stories or examples where the high ideals of the MCA 2005 are not translated into reality. We can identify many reasons for this – not least being the fact that only a year after it came into force, the world ran out of money, and proper implementation takes both time and money. One particular reason I would highlight is that, because the MCA 2005 is – for the most part – about process rather than about outcome, it can sometimes be difficult for public authorities to measure ‘success’ in terms of the implementation of the Act. After all, it is much more difficult to measure the number of ‘successful’ best interests decisions taken in relation to medical treatment than it is to measure the number of operations carried out: but each of those best interests decisions represents (or should represent) an intensely detailed examination of the circumstances of an incapacitated adult to determine what is the “choice which is right for him as a human being.” The Committee is alive to this difficulty, but described as “indefensible” the failure of this (and by extension the previous) Government to put in place any effective measures to ascertain whether the Act was actually working (see paragraph 34 of the report).
The problems in relation to the DOLS safeguards are perhaps of a different order, reflecting as they do a toxic combination of a definitional problem which has proved extraordinarily difficult to crack and a profoundly flawed piece of legislation We will, I hope, get some form of clarity as to what exactly a deprivation of liberty means when the Supreme Court hands down its decisions in the Cheshire West and P and Q cases (I understand next week), but fruitless years spent trying to explain the safeguards in and out of court mean that I am entirely in support of the proposal that we simply start again. In that process, which – sadly – cannot mesh with the Care Bill, I hope that thought can be given to how to ensure that the rights of those who fall just below the threshold of a deprivation of liberty (however that is defined) can be protected through access to advocacy and independent examination and reviews of their care.
I have found that there is among practitioners (qualified and unqualified) a wide range of understanding of the Mental Capacity Act and how it should be applied. Locally, in Brent, we have acknowledged that carrying out a capacity assessment is a core skill for all those carrying out assessments and, where the person doesn’t have capacity, making best interest decisions. In practical terms, the assessment of capacity may be a straightforward issue -but it has to be remembered that the assessor has to bring something to the table, namely the information that someone might require to communicate a decision. If this is not provided, a decision-specific assessment can’t be made. If the person cannot understand, weigh or retain that information they will not be able to communicate their decision and will depend on others to make decisions on their behalf. This situation arises so frequently in adult social care that proportionality must be used in relation to the specific decision that is required. Sometimes, there is a clear basis for making a fairly straightforward decision, in which case it would be discriminatory against the person without capacity to have to go through a long drawn-out process in order to move forward. Nonetheless, the basic steps of checking that the decision is in the client’s best interest should be followed. If there is something substantial or controversial about the decision, then a more robust process is needed.