Mental Capacity Act 2005 (Select Committee Report)

Baroness McIntosh of Hudnall Excerpts

Tuesday 10th March 2015 Lords Chamber

[Baroness McIntosh of Hudnall (Lab)]

My Lords, when I took my place in the Chamber, it occurred to me that I did not really want to speak in this debate at all. I only wanted to listen. I was right to have that thought because there is actually very little left to say—certainly for me to say—near the end of what has already been an absolutely excellent debate with some more still to come. Noble Lords with far greater expertise and experience than I could ever lay claim to have covered the water-front comprehensively. So I shall speak briefly to support but—noble Lords will be relieved to hear—not to repeat everything that has been said and to make one small plea of my own.

I was a member of the Select Committee so ably led by the noble and learned Lord, Lord Hardie. He has set out the committee’s stall with consummate skill, as those of us who served with him would have expected. I thank him, my colleagues on the committee and the immensely dedicated and hard-working team who supported us. I learned a vast amount from all of them and, of course, from the many people who supplied us with evidence. It was genuinely a privilege to be part of such an important inquiry. Everything that has been said so far demonstrates how much we have moved on from the very early days when a mental capacity Act was in contemplation.

As we have already heard, the Mental Capacity Act is a rare piece of legislation in that almost nobody has a bad word to say for it in principle. I am proud that it was introduced by the last Government. Along with the noble Baroness, Lady Barker, I am proud to have served, more than a decade ago, on the pre-legislative scrutiny committee which recommended a number of improvements to the original Bill. Those included, significantly, that its name be changed from the mental incapacity Bill to the Mental Capacity Bill. It was a critical decision because it emphasised the Bill’s intentions to focus not only on protecting those without capacity but also on what people with limited capacity could, with support, decide for themselves, rather than on what they could not. We have heard a great deal from various eminent noble Lords about the issue of best interest and how that is to be decided, for people who have some capacity as well as for people who have none. The resulting Act, which went on to the statute book in 2005, is widely felt to be essentially benign, founded on those five core principles about which we have heard a lot in this debate.

As has also been said, difficulties arise from failures of implementation and/or compliance with the Act which, in turn, derive from two main issues. One is imperfect understanding—among professionals and non-professionals—of how the Act should be applied in practice, including the kinds of formulaic and risk-averse behaviour so clearly described by the noble Baroness, Lady Finlay. The second is limited resources within the health and care sectors and more widely. The specific problems with DoLS have been well described, and are, we now understand, being addressed through a Law Commission review, with some additional measures to improve matters in the short term. These are welcome. Indeed, the Minister has given us all a preview of the speech we can expect from him by providing a helpful update on how the Government are taking forward each of the recommendations made by the Select Committee. It is gratifying to see how frequently the word “accept” appears throughout this document. However, the point made by the noble and learned Lord, Lord Hardie, is forcefully made and undeniable.

We also know, having had the benefit of his presence as a member of the committee before he entered Valhalla, that the Minister himself is well seized of the issues and committed to making progress, but it is hard not to be anxious about how many of these good intentions may fall by the wayside on the other side of the election, no matter who is in government. I hope that we will hear some reassuring words on that subject both from the Minister and from my noble friend on the Opposition Front Bench, whom I hope of course to see ascending to Valhalla himself soon after 7 May, but that is another story.

I should like to take a moment before I sit down just to mention the issue I referred to at the beginning of my speech, which is that of lasting powers of attorney, and which I do not think has yet been touched on by anyone else. The committee heard evidence suggesting that,

“awareness of LPAs among the general population was low, and that access to good quality information was not always readily available. Not many people were aware of the two types of LPA, covering property and financial affairs on the one hand and health and wellbeing on the other”.

The committee also observed that:

“Witnesses expressed concern regarding the complexity of the forms and cost of registering an LPA. The paperwork was considered onerous and the assistance of a solicitor was often sought; this added to the burden of costs”.

I know that efforts are being made on both of these issues, but my own recent experience, which I will share very briefly with the House, bears out the evidence.

When we were coming to the point of producing the report, it was borne in on me very forcefully that a lasting power of attorney was something that everyone ought to have, particularly as they move into their—shall we say—later years. The reason it struck me so forcefully was that we had spent an enormous amount of time in the committee talking about people who are declining into diminished capacity through progressive disease of one kind or another such as dementia, or those who suffer from learning disabilities which impair their capacity. What we did not talk about a great deal, although it has been mentioned in the debate, particularly by the noble Baroness, Lady Finlay, is the sudden loss of capacity that comes from an accident or catastrophic brain injury, through which one can be translated in a moment from full capacity to no capacity. I thought that it was something that could happen to anyone, so I had better trot along to my solicitor and get myself a lasting power of attorney set up. I got a good way down the line, but I have to say that I did find the process extremely off-putting. I do not mean that my solicitor was anything other than kind and supportive, but the amount of paper that had to be waded through, of consultation that needed to be done and of signing up needed on the part of the people who were to be registered as deputies under the LPA was such that—I am sorry and ashamed to say—I gave up. I still have not done it, and that is not good for me and it is not good for all the rest of us who have not done it. Allowing for all the necessary safeguards to protect against the misuse of LPAs, which I perfectly understand, can the Minister say what more could be done to encourage their uptake? I think that they will become increasingly important.

The Mental Capacity Act was and remains an enlightened piece of legislation which will become increasingly necessary and significant as more people live on with impaired capacity. It has already done good in the world and will do more, provided that it is understood and supported so that it can operate as it should. I hope that the Minister will take seriously the challenge from the noble and learned Lord, Lord Hardie, to think again about the Government’s decision not to implement recommendation 3. Doing so would be the best way to provide that support.