Is the Mental Capacity Act 2005 fit for purpose?

The House of Lords Select Committee have carried out a review on how the Mental Capacity Act 2005 (MCA) has been working since it was implemented in 2007.

The recently published report, looked at all aspects of the MCA and has concluded that, whilst the Act is generally held in high regard, parts of it have not lived up to expectations.

One particular area which they feel has fallen short is in relation to the Deprivation of Liberty Safeguards or DOLS. A recent court case set out a definition of when a Deprivation of Liberty occurs as when “the person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements”

These rules apply to vulnerable people who are over the age of 18 or over;

  • who have a mental health condition (which can include dementia)
  • who are in hospitals, care homes or supported living, and
  • who do not have the mental capacity  to make decisions about their own care or treatment

The report highlights a lack of awareness and understanding of the MCA by the general public,  service users, health and social care professionals, lawyers, banks, the police etc who all need different information.

The main areas of concern have been identified within health and social care and 39 points were raised by the report and include:-

  • Independent Mental Capacity Advocates (IMCA’s) who have been given the thumbs up in the report which recommended that IMCA’s should have enhanced roles and become involved at an early stage and should have improved training. People should be able to request an IMCA themselves rather than wait for one to be requested by health professionals or the courts.
  • Health care professionals need to have more awareness and understanding of Advance Decisions, which enable a person to write down their wishes as to life sustaining treatment in the event that they lack capacity in the future. These should be promoted and need to be discussed in the early stages of illness.
  • The Court of Protection needs more staff to speed up the process and to become more transparent.  There should be other ways of dealing with matters before they get to court.
  • Funding options for people with DOLS issues need to be reviewed by the government to give more people access to the legal system
  • Lasting Powers of Attorney need to be made easier and should to be promoted by local councils.  New rules are needed to deal with attorneys who do not do act in accordance with the wishes of the person who made it.
  • The laws concerning neglect and poor treatment of incapacitated persons needs to be re-visited because of the very few cases have been brought to court

It remains to be seen what the Government will make of the report and whether or not the suggested changes will be implemented.

These changes, if brought into effect, can simplify the process and help vulnerable adults which is to be welcomed by all.

The MCA was ground-breaking when it came into force, but after 7 years many things have moved on, complex cases have been brought  and it needs to adapt to better serve the needs of the people it was designed to protect.

Rosemary Johns is committee member of the Court of Protection Practitioners Association (CoPPA) and Associate Solicitor within Birchall Blackburn Law’s Private Client Team.