Mental Capacity Act 2005 (Select Committee Report)

Baroness Barker Excerpts

Tuesday 10th March 2015 Lords Chamber

[Baroness Barker (LD)]

My Lords, I too was a member of the committee and I wish to thank the staff who assisted us in our deliberations. I really want to thank the noble and learned Lord, Lord Hardie, whose chairmanship was outstanding. I also want to put on record our thanks to Hammersmith and Fulham Mencap. The Minister and the noble and learned Lord, Lord Hardie, and I spent a memorable morning with Hammersmith and Fulham Mencap.

On my shelves I have what has now become something of an artefact. It is the code of practice from the original passing of the Act in 2005. There are not very many hard copies of that remaining. The visit to Hammersmith and Fulham reminded me, in ways that I needed to hear, that much though we had been through a deliberative process of determining ethical principles and standards, what we passed in that legislation was dramatically important to individual people who lacked capacity.

It was almost inevitable that legislation that was founded on principles which include a presumption that every individual has capacity and that individuals retain the right to make what may be seen as eccentric or unwise decisions was always going to be difficult to implement. I think that we in this House, at the time we did that, knew that the need for this legislation would only grow. Not only do we have a growing number of people with learning disability, but we also have a growing number of people with dementia. What we found, as the noble and learned Lord, Lord Hardie, set out so eloquently in his introduction to this report, was that the implementation of this Bill has been patchy. What I think does not perhaps come through clearly enough from our report is that where there were outstanding examples of good implementation of the report it was often down to the lone efforts of an individual practitioner—quite often on the front line. Some of the poorest practice was institutional and some of the institutions that are not implementing this legislation as issued are the very ones to which it was directed.

I am disappointed that the Government did not take up our suggestion that there should be an independent forum. The suggestion was put forward in light of the experience of the noble Baroness, Lady Shephard, as part of the Mental Health Act Commission that was set up after the passage of the Mental Health Act in 1983. That legislation has been implemented well. The professions have a clear understanding of what their obligations are and the implementation is and was closely monitored by Mental Health Act commissioners. That is why we made our recommendation.

I share the widespread reservations about the proposed mental capacity forum. I do not see how it will have the power or capacity to challenge some of the deep-seated resistance there is, not least among professionals, to the implementation of the law. I challenge the Minister to publish transparent information about the forum so that it is accessible to all who wish to apply to be on it and to ensure that it comes into existence in time for the forthcoming consultation by the Law Commission on the important matter of DoLS. I do not wish to talk about DoLS today. The noble Baroness, Lady Browning, and the noble and learned Lord, Lord Hardie, indicated the importance of that subject. I would simply say that although we were dedicated as a group, and we had great expertise at our fingertips on the Select Committee, we only began to scratch the surface of the issue. We did not, for example, consider what happens to specific groups of people who are deprived of their liberty, such as young people as opposed to old people, and in different settings. There is need for greater research.

I wish to focus on one or two parts of our report that might otherwise go unmentioned. Section 44 of the Mental Capacity Act deals with the criminal law provisions where a person who has care of someone who lacks capacity is guilty of neglect or ill treatment. Very few cases have been brought under Section 44. In fact, there were 85 cases in 2012, of which 36 were found guilty. We are talking about an Act that applies potentially to 2 million people. Solicitors and barristers who, by nature, are people not given to bold statements told us in terms that Section 44, as currently written, is thoroughly deficient. We were greatly assisted by colleagues from the Law Society of Scotland, who pointed out that under the Adults with Incapacity (Scotland) Act 2000 there is no need to establish whether someone had capacity or whether the perpetrator of an act knew that the person had incapacity in order to determine that a crime had taken place. I therefore find myself in agreement with those who said that Section 44 needs to be changed as a matter of urgency. If a crime is perpetrated against someone, it matters not one jot whether the perpetrator knew that they lacked capacity.

On the matter of professionals, professional bodies and their implementation of the Mental Capacity Act, chapter 4 of the report is hard hitting, and rightly so. I say to people who think that we are being unduly hard, particularly on the medical profession, that they really should go and look at the evidence provided to us in writing and orally by bodies such as the Royal College of General Practitioners. I understand the point that the noble Baroness, Lady Finlay, was making and it is true that this legislation has a disproportionate bearing on different parts of the medical profession. The bearing that it has on an A&E practitioner is different from the way in which it is likely to impact on the professional judgment of a psychiatrist. None the less, the medical profession as a whole has to come to some agreement on, and have some consistency about, the way in which it applies this law. It was not good enough for the Royal College of General Practitioners to say to us that GPs would not routinely spend time with patients making advance statements because it is “not part of” the GP contract. Well, it is the law. I have to say that I had a great deal of sympathy with the Royal College of General Practitioners when it said that it did not understand what the status of such a document would be and how it would be viewed by other people in other parts of the NHS. It seems to me that the noble Baroness, Lady Finlay, is right. There is a need for consistency across the NHS.

Our visit to the Court of Protection was truly impressive. I am very glad that the Court of Protection is going to get more staff and that the process of making an application to it has become a great deal easier. We passed a great piece of legislation in 2005 but we need to increase the quality of the monitoring and evaluation of its implementation across government.