Mental Capacity Act 2005 (Select Committee Report)

Lord Hardie Excerpts

Tuesday 10th March 2015 Lords Chamber

Moved by

[Lord Hardie]

To move that this House takes note of the Report of the Select Committee on the Mental Capacity Act 2005 (Session 2013-14, HL Paper 139).

[Lord Hardie (CB)]

My Lords, I refer to my entry in the register of interests as honorary president of Capability Scotland.

In inviting the House to take note of the report of the Select Committee on the Mental Capacity Act 2005, I thank the members of the committee for their hard work and commitment throughout the inquiry. This was an arduous process, involving the assessment of written and oral evidence amounting to almost 2,000 pages. I also thank Judith Brooke, Tansy Hutchinson and Oswin Taylor—the committee’s clerk, policy analyst and committee assistant, respectively—and our specialist adviser, Professor Peter Bartlett, for their support and guidance throughout. That was invaluable and much appreciated by me and all members of the committee.

It is now a full year since the committee reported its findings. That may seem a long time to wait but in this case it provides the ideal opportunity to hold the Government to account for what they have done in response to our findings. It has also enabled the Government to change their mind about recommendation 13. It may assist the House if I explain that although there are 39 recommendations in the report of the Select Committee, recommendations 3 and 13 are the key ones. They concern, respectively, poor implementation of the Act and the need for replacement legislation for deprivation of liberty safeguards, or DoLS. These key recommendations underpin many of the other specific recommendations, with a few exceptions. In view of the time available, I propose to concentrate on the two key recommendations and the Government’s response to them. I hope that this approach will highlight what needs to be done to ensure the effective implementation of the Act and provide appropriate safeguards for some of the most vulnerable members of our society.

The task of the committee was to consider whether the Act was working as Parliament intended. As enacted, the legislation did not include DoLS and it marked a turning point in the legal rights of people who may lack capacity, whether for reasons of dementia, learning disability, brain injury or temporary impairment. The Act placed those individuals at the heart of decision-making and introduced principles of the presumption of capacity, assisted decision-making and respecting unwise decisions, as we do in our own lives. It also provided protection for those who could not make their own decisions, even with help, by providing for decisions to be taken in a person’s best interests in the least restrictive manner. The Government expected it to bring about,

“a quiet revolution in public attitudes and practice”.—[Official Report, Commons, 18/6/04; col. 68WS.]

However, even after 10 years that has not been achieved.

The overwhelming theme of our evidence was that the Act has not been widely implemented. That is our most important finding. I am pleased that the Government, in responding to our report, concurred with that finding. Their response said that,

“there is much work to be done if the transformative power of the MCA is to be felt by all those people for whom it was intended”.

This acknowledgement was particularly welcome, because when we embarked on our inquiry in June 2013 the departmental officials appeared confident that implementation of the Act had been a success. Nothing could have been further from reality. If nothing else, our committee has made the Government recognise that something has to be done.

When the committee referred to “poor implementation”, it is important to appreciate what that means in practice. It means that the core principles in Section 1 of the Act are not applied. It means that capacity assessments are often not carried out and, when they are, the quality is often poor. Often, those making their assessments do not appreciate that the assessment needs to be time-specific and decision-specific. Capacity is not always presumed when it should be; indeed, some of our witnesses suggested quite the opposite. Certain categories of individuals, such as those with learning disabilities and the elderly, were assumed not to have capacity unless proven otherwise.

In some cases the presumption of capacity was misunderstood, with dangerous consequences. Vulnerable adults were left at risk of harm, after disengaging from services without scrutiny of their capacity to make such a decision. The professionals involved referred to the statutory presumption of capacity, as if they were helpless to intervene. In healthcare settings, often the trigger for assessment of capacity was a refusal to accept treatment. We found this particularly disconcerting. It suggests that someone who may lack capacity but who is acquiescent is denied the protection of the Act. A vulnerable adult might undergo treatment without the relevant safeguards of the best interest test.

Supported decision-making is not well embedded in practice. Best interest decision-making is not undertaken as envisaged. In medical settings best interest decisions were widely confused with the notion of clinical best interests—in other words, the judgment of the treating clinician. The arrogation of such decisions to a medical practitioner is not lawful for patients with capacity. Why should vulnerable people be denied protection from unlawful intervention?

In referring to evidence of poor practice and failure to implement the core principles, I wish to emphasise that we also heard evidence of good practice, but the overwhelming weight of the evidence told us that that was exceptional. What were the causes of the failure to implement the Act? The most prominent one was lack of awareness, followed closely by lack of understanding. That fatal combination leads to a general failure to deliver important rights to vulnerable people.

Against that background the committee considered that the first task of government is to address urgently the very low levels of awareness of the Act, but we also recognise that awareness-raising alone will not change culture. A much wider approach is required, taking in training and professional standard-setting, and monitoring compliance across sectors. To achieve that we recommended that the responsibility for oversight of the Act’s implementation should be given to a single independent body, whose composition reflected the professional fields within which the Act operates, as well as the range of people directly affected by it and their families and carers. Most importantly, this body would drive implementation forward and act as a spur on those professional bodies and associations with a responsibility to ensure compliance. The committee firmly believed that this step was necessary if the benefits of the legislation were to be realised. That was the first of our two key recommendations.

It was a grave disappointment that the Government did not accept that recommendation in their response. The reasons for rejecting our recommendation seem to be related in part to the breadth of sectors covered by the Act and the associated difficulty of the task in designing a single body, coupled with a fear that such a body would result in people involved in the Act failing to accept personal responsibility for its implementation. I note that in their response the Government do not suggest that the task is impossible. Many tasks are difficult but well worth the effort if they achieve a successful outcome. In this case a successful outcome would be the restoration to many thousands of vulnerable people rights conferred on them 10 years ago, but denied to them because of failures of professionals in different sectors to implement this Act.

The breadth of sectors has been part of the problem in the past, with no single body having the responsibility for ensuring compliance across all sectors. I do not accept that a single body would remove personal responsibility from individuals. Rather, it would monitor and reinforce personal responsibility. What is the Government’s counter-proposal to our single independent body with overall responsibility for implementation? In November of last year the Minister, Simon Hughes, announced the Government’s intention to establish a new national mental capacity forum. While I am delighted that the Government are acting to bring together relevant stakeholders, I am concerned that the proposed forum is precisely that: a forum—or, in common parlance, a talking shop with no power or responsibility to drive forward implementation of the Act.

A further concern is the apparent lack of urgency taken to address this matter. The letter from the Minister and the accompanying schedule, for which I am extremely grateful but which was sent out last night, suggests that the recruitment for the post of chair will get under way imminently and that the first meeting of the forum will be in the autumn. Why has there been a delay of four months in the application process and why will the first meeting be a year after the Minister’s announcement? The process appears to be very slow and to lack transparency. Perhaps the Minister here can provide further detail this evening. What will be the remit and powers of the forum? Who will sit on it? How will members be selected? Will the forum have a sufficiently high profile to make a real difference? I would be grateful if the Minister could reply to these points.

However, I emphasise that my fundamental objection to this proposal by the Government is that it is not a solution to the widespread problems, across all sectors, of failure to implement the Act, and to give vulnerable people the voice and empowerment that Parliament conferred upon them in 2005. In short, it will not bring about the quiet revolution in public attitudes and practice promised 10 years ago. That will only be realised if the Select Committee’s recommendation 3 is implemented in full.

Our second principal finding and recommendation concerns DoLS. Criticism of the safeguards was extensive. It came from all parts of the process, those with direct experience of the safeguards as well as solicitors, academics, service users and the judiciary. The criticism was not just about how the safeguards were being implemented. It was about the legislation itself. The purpose behind the safeguards was generally supported, but the provisions themselves were considered overly complex, poorly drafted and having no relationship to the language or ethos of the rest of the Act.

The number of applications was considered suspiciously low by many of our witnesses and it became apparent that in many cases the safeguards were not being applied when they should have been. Witnesses suggested that thousands, if not tens of thousands, of individuals were detained without the protection of the law and without the means to challenge their deprivation. Individuals were left without the safeguards that Parliament intended. That evidence was borne out by the Cheshire West judgment, handed down by the Supreme Court the week after our report was published. Following that decision the number of applications for DoLS in the first nine months of 2014 was 90,000, compared to a total of only 13,000 made throughout the previous 12 months.

It also appeared to the committee that the Bournewood gap had not been closed by the introduction of DoLS. In the face of such wide-ranging criticism the committee was forced to conclude that the only possible course of action was to ask the Government to start again. We recommended that the Government bring forward new provisions that would be in keeping with the rest of the Act. They should be drafted in clear and simple language in order to be understood. They should be extended to include adults in supported living. The interface with the Mental Health Act needs to be made clearer to avoid new gaps arising from the overlap of those two pieces of legislation.

The initial response of the Government did not accept that there was a fundamental flaw in the legislative framework. Instead, the Government offered to instruct the Law Commission to propose a new framework to allow for deprivation of liberty authorisations in supported living. The inclusion of supported living in the authorisation scheme was welcome but was far too narrow to meet the far-ranging criticism which we had heard. I am delighted therefore to learn that the Government have now initiated a fundamental review of the DoLS legislation by the Law Commission. I understand that the Law Commission intends to publish its report and a draft Bill by summer 2017. I consider this the right course of action in the light of our findings, and I am grateful to the Government for changing their mind.

Concerns have been raised by stakeholders about the timetable for new legislation. It appears likely that, with the time required for pre-legislative scrutiny following the publication of the Law Commission’s draft Bill, we may not see new legislation on the statute book until 2020. Good legislation takes time. Our report called for the new provisions to be consulted on widely and for adequate time to be allocated to parliamentary scrutiny. That is necessary in order to get it right, but I urge the next Government to give this matter a fair wind. It is of fundamental significance to the rights of tens of thousands of vulnerable adults in England and Wales and deserves to be addressed at the first opportunity.

In conclusion, I welcome the Government’s acceptance of recommendation 13, but I wish to impress upon the House that there is no cause for complacency about implementation. The failures we identified in our report continue. Callers to the Mencap helpline continue to report that understanding of the Act among health and social care professionals is extremely limited and that it is often applied incorrectly. Family members continue to be excluded from best interest decisions if, indeed, the best interest process is engaged at all. There is still a pressing need to increase awareness and understanding to prevent the Mental Capacity Act withering on the vine. Nothing short of culture change is needed to ensure that vulnerable people are no longer failed by the Government and are empowered as Parliament intended them to be in 2005.

I hope that the Government will realise the inadequacy of their proposed forum and appreciate that the solution proposed by the Select Committee is the only one that will ensure implementation of the Act. I urge the Government to change their mind about recommendation 3, as they did about recommendation 13. That, coupled with the other recommendations accepted by the Government, in whole or in part, would result in a clean sweep of the Select Committee’s recommendations but, more importantly, would ensure that people were empowered to take decisions while enjoying the support and protection of society that they might need. I beg to move.

--- Later in debate ---

[Lord Hardie]

My Lords, I am grateful to all noble Lords and to the Minister for contributing to this stimulating and wide-ranging debate. Noble Lords have raised different aspects of the report and drawn attention to it, thereby giving it much wider coverage than I was able to do. I am grateful to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, for his explanation of the Cheshire West decision. In response to a point raised by the noble Baroness, Lady Hollins, about voting, perhaps it might be of interest to know that when we visited Hammersmith Mencap, there was a young man who had severe learning disabilities but he had voted in every possible election. That was achieved because his mother, who was a French woman, took the time to sit down with him and explain, or his carer would explain, the details of the individual candidates in small stages. He became informed as to the choice that he had. We were particularly moved; he had voted in every election and intended to vote in the London mayoral election as well.

The committee’s report and this debate have shown the value of post-legislative scrutiny of legislation. The noble Lord, Lord Beecham, raised the point about the time it has taken but, as I said earlier, that has worked to our advantage in this case. As I understood it when I accepted the appointment of the chair of the Select Committee, it was a relatively new venture for the House to embark on post-legislative scrutiny of legislation. If that is correct, this report and other reports of similar committees highlight the value of the exercise which this House can undertake in respect of important legislation. The message that we can take away from this is that there is a need to maintain a review of this important topic into the next Government and to ensure that the Government are held to account so that progress is made as quickly as possible in this important matter.

Motion agreed.