Mental Capacity Act 2005 (Select Committee Report)
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The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I thank the noble and learned Lord, Lord Hardie, for securing this debate, albeit that it has taken a little time to get it to the Chamber.
The Mental Capacity Act is a positive piece of legislation. The noble Baroness, Lady McIntosh, is absolutely right: calling it “capacity” rather than “incapacity” was an important change. The legislation empowers and protects individuals, and has the potential to transform lives. The Government welcome the committee’s report and its recommendations.
Standing at the Dispatch Box, I am in the unusual position to be able to pay tribute, not just in formal but in practical terms, to the secretariat, the expert advice, and in particular all the evidence, oral and written, that was obtained and the various visits, including a memorable one referred to by my noble friend Lady Barker. All this contributed to the committee’s report. One thing that has emerged from the debate is just how difficult this subject is, and how it needs to be challenged and tackled in all sorts of different circumstances. There is no question of complacency on the Government’s part, as some noble Lords suggest.
Parliament showed considerable leadership in bringing forward the legislation to shape the way that individuals were treated. While I recognise what the committee has to say about implementation, we should not for a moment underestimate the complexity of the challenge involved in changing cultural attitudes towards mental capacity. I am glad that a number of noble Lords referred to the difficulty of assessment. The noble Baronesses, Lady Warnock and Lady Finlay, emphasised how mental capacity can fluctuate. Performing an adequate assessment is difficult. Instruction is variable, as we have found in the course of investigating this matter.
Changing attitudes is not as simple as a flick of a switch, especially when we consider the number of people in the healthcare and social care sectors whose roles are affected by the act, together with those in countless other sectors in society. While the Government, of course, bear an important responsibility, the principles of the Act are not solely a task for government. They require the support of everyone: those responsible for running services, professionals and the public. My department, the Department of Health and those organisations responsible for implementing the Act have worked together to bring life to the committee’s recommendations, but there is still a long way to go.
In my brief remarks, I shall focus on the two main recommendations of the report. Acting on a request received from the noble Lord, Lord Beecham, I have taken the opportunity to write to colleagues to provide an update on all the actions taken since the publication of the government response in June 2014. I hope that colleagues have found it useful and that they will note the considerable amount of work that has been undertaken over the past 12 months. That letter and the enclosures have been deposited in the Library, and I hope the House will forgive me if I do not go over all the answers in that letter but try to respond to some of the specific points that have been made during the debate.
I shall first deal with the national mental capacity forum. The committee recommended the implementation of a single independent body with responsibility for the implementation and monitoring of the Act. On 27 November 2014, it was announced that we would set up a national forum with an independent chair. I appreciate that this has been described by more than one noble Lord as a talking shop only. The Government are painfully aware that a talking shop is not enough. The purpose of the forum—and one should not be too affected by the name as it is what it does rather than what it is called that matters—is to inform the Government’s understanding and take the positive message of the Mental Capacity Act out to professionals and the public. The Mental Capacity Act implementation group will be a Department of Health and Ministry of Justice arm’s-length body and statutory agency. The chair of the forum will also be on the implementation group which will deliver what the forum has obtained by way of information and what is being disseminated. Ultimate responsibility will rest with the Department of Health and the Ministry of Justice which will oversee these matters at the highest level.
We hope to launch the recruitment process for the independent chair in the next few weeks and to have the chair in place by the summer. The chair will work with officials to agree the membership and composition of the forum, which we propose will meet for the first time in the autumn. We are anxious, for obvious reasons, to engage with as wide a range of stakeholders as possible. We envisage that there will be a large virtual network which will contribute to the work of the forum, but we will need a smaller core group of stakeholders, led by the independent chair, to co-ordinate the work and advise government. Enthusiasm for the national mental capacity forum is clear already. In the three months since it was announced, the Department of Health alone has received in excess of 50 applications for membership from a wide range of implementation bodies. We anticipate this to rise further over the coming months as we accelerate the formal recruitment, and we intend to launch the recruitment of the independent chair of this forum imminently. The terms of reference stress the need for a high-calibre individual who can bring together different organisations and focus on specific actions that will help support local implementation. We would be grateful if noble Lords— and a great deal of expertise was evidenced in the course of this debate—disseminated news of this advertisement to ensure that we attract distinguished applicants.
The aim and recommendations of the committee were clear. The aim and the aspiration of the Government are similar, although I accept that the recommendation does not tally precisely with that made by the committee. However, I assure the committee that great heed has been paid to what animated and lay behind that recommendation, and a great deal has been learnt from it.
On the deprivation of liberty safeguards, the committee made nine recommendations, including a comprehensive review of the legislation itself. The history of the matter is well known, and I do not need to repeat it now. The fact that the system did not work satisfactorily was, I think, evident to all those who had any part in the committee.
Members of the committee are, of course, aware—it has been discussed during the debate—that almost a week after the publication of the report, the Supreme Court issued the judgment in the Cheshire West case, which set out a clarified test for what constitutes a deprivation of liberty. The test is whether that individual lacks the mental capacity to consent to the arrangements for their care, and is under continuous control and supervision, and is not free to leave their place of residence. All three elements must be present. An individual’s compliance or objection is not relevant in judging whether a deprivation of liberty might exist.
This revised test means that significantly more individuals are now considered to be deprived of their liberty than were under previous practice. As a number of noble Lords have pointed out, the use of the safeguards is now considerably greater than when the House of Lords Select Committee looked at this matter. The Supreme Court judgment adds further weight to the Select Committee’s recommendation that the deprivation of liberty safeguards should be reviewed.
The Care Quality Commission report of 2 February 2015, which was included in the helpful briefing pack provided by the House of Lords Library, illustrates the significant increase in applications after the Supreme Court judgment. One of the reasons may be that the Supreme Court said that those in doubt should err on the side of caution in deciding to make such applications: that advice seems to have been very much heeded.
I am pleased to say that the Government have initiated a fundamental review by the Law Commission of the deprivation of liberty safeguards legislation. We expect its detailed consultation paper this summer. The Law Commission’s work will be completed in summer 2017, when it will present the Government with draft legislation. That may seem too slow for some people’s entirely understandable aspiration for there to be clarity in this area. However, I respectfully agree with the noble and learned Lord, Lord Hardie, that this must be got right. After all, it was not a perfect piece of legislation hitherto and there are a number of stakeholders to consult, so this process will inevitably take more time than ideally one might like.
The noble and learned Lord asked why the Government had delayed in setting up the forum. As we stated in the government response, the range of stakeholders was wide, and we have taken time to get, as we think, the governance structure right. As I have said, the independent chair will play a key role in this.
My noble friend Lady Browning asked about the use of the Mental Health Act in connection with learning disability. I agree wholeheartedly that the failings at Winterbourne View were completely unacceptable, and use of the Mental Capacity Act there was poor, if not non-existent. The Government strongly believe that better implementation of the Act will greatly reduce the likelihood of a future Winterbourne View situation. The noble Baroness may well be aware that the Department of Health has just launched a public consultation on increasing independence and improving care for those with learning disabilities, which specifically considers the use of the Mental Health Act.
My noble friend also spoke about a halfway house to cover vulnerable individuals before the Law Commission’s report. I sympathise with the view that these basic human rights must be protected: that is the matter of ensuring that a deprivation of liberty is in a person’s best interest. But we believe that one cannot take one group of individuals—for example, those with learning disabilities, although I accept that this is a lifelong condition and there are many, many of them in the population—and consider their rights in isolation. These are universal human rights, and if we are to have a future system to replace DoLS that works for everyone, we must afford the Law Commission time to consider all this in the round.
The noble Baroness, Lady Finlay, referred to advance decisions, including those recorded in electronic records. I agree that it is key that the NHS has systems in place to ensure that, when an advance decision or a lasting power of attorney exists, professionals can easily find such information. The Department of Health is progressing the steps to improve such information-sharing; for example, the MyNHS programme seeks to put patients’ information at their control and allow it to be shared with professionals. We believe that greater awareness of the relevance of advance decisions among professionals will go together with a better understanding of the Act itself.
My noble friend Lady Barker referred to the criticism that had been received of Section 44 as a criminal offence. I take her point and the reference to the opinion that it was not a particularly well drafted or useful provision. It is right to say that prosecutions have increased over time, however, and I believe that that does at least demonstrate an increased awareness among police and prosecutors of the nature of the offence, albeit that it may have limitations.
The noble and learned Lord, Lord Brown, helpfully told the House about the decision-making process in the Cheshire West case and effectively asked what was happening in the mean time, given that the Law Commission was going to take some time to produce the legislation. In the short term, we have taken steps to simplify the existing process as much as possible. We have funded a review of the existing DoLS forms by the ADASS. That resulted in a reduction in the number of forms from 32 to 13, which will reduce the bureaucratic burden on providers and local authorities. We have also requested comprehensive guidance as to what constitutes a deprivation of liberty from the Law Society, which is due. We have also issued DoLS guidance notes, which have been well received by the field; and a new streamlined court process, together with new court forms for DoLS cases, was introduced in November. The case law guidance is in its final stages of preparation and will be published by the end of this month. We have extended the scope of the guidance to cover acute hospital settings, A&E, care homes, hospices and community settings.
The noble Baroness, Lady McIntosh, asked what was being done to increase knowledge of lasting powers of attorney, and told the House about some of the difficulties that she had confronted when seeking advice in this area. My ministerial colleague Simon Hughes is chiefly seized with this. The provision of online services for making LPAs should make them more attractive to a wider range of people and make it simpler and quicker for them to make an LPA. I hope that that will encourage more people to plan ahead at an earlier stage, rather than leaving it until the onset of a lack of capacity is imminent. She was right to talk about the fact that these things can happen very suddenly. I have experience of cases in which people have brain-acquired injuries when it is all too late to consider these matters.
What is being done to increase knowledge of LPAs? A current awareness campaign, Choice not Chance, is aimed at encouraging people to consider making an LPA to ensure that their choices count and decisions are not left to chance. The Public Guardian has appeared regularly on the Radio 4 programme “Money Box Live” to give advice and answer questions about LPAs, and he was recently involved in a webinar for the nursing profession. The OPG has carried out extensive work with the banking profession and has developed guidance to help financial institutions to recognise LPAs and understand what they mean and how to work with attorneys. The noble Baroness, Lady Warnock, spoke of the need for better information available in GP surgeries, and I am sure that that is right. The OPG prepares a quarterly report to the financial institutions highlighting feedback received about the customers’ experience in using the LPA or court order, and bank-specific feedback is provided to each institution to assist them in shaping their services.
The noble Baroness, Lady Hollins, stressed the need for more information for service users. I very much agree that it is vital that we provide all necessary support to those who lack capacity. That is, of course, fundamental to the Act. The MCA directory referred to is still receiving submissions, and I believe that local NHS and social care organisations have produced specific material for service users. However, I would be happy to commit now on behalf of the Government to ensuring that the new MCA directory has a dedicated service-user page. If the materials do not already exist at a local level, the Department of Health will explore options for commissioning those resources.
I am conscious that there may be some other queries that have been raised during the course of the debate that I have not answered. I can assure noble Lords that we will study Hansard and try to deal with any outstanding queries that have not been answered either in the letter or in my response.
The committee’s report has served a very vital task. It has brought mental capacity to the forefront of people’s minds. This is particularly important with the growing numbers of people living longer, with learning disabilities or with dementia. No statistics, or at least no hard statistics, exist on people who lack capacity. But around 2 million people are affected, based on 800,000 people with dementia and 1,200,000 with learning disabilities. All those with an interest in mental capacity, be they professionals, carers or the individuals themselves, have an interest in raising awareness of the Act and its ethos of empowerment.
We will continue to work with everyone to ensure that the awareness-raising and implementation continue. I reiterate my thanks to the noble and learned Lord and his committee again for raising this report as a subject of debate and to all noble Lords who have participated in this debate—and, I should add, for their continued, valued contribution to the advancement of knowledge and understanding of this difficult but very important subject.