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House of Lords report on the Mental Capacity Act 2005: What it means for my clients

Last week the House of Lords Select Committee on the Mental Capacity Act 2005 published its eagerly anticipated report on the Act. Having considered the recommendations, I am extremely hopeful that, if adopted, the Act will go from strength to strength.

The Lords identified that the Mental Capacity Act (the Act) has suffered from a lack of awareness and a lack of understanding.” As a solicitor specialising in litigation in the Court of Protection I usually become involved when things have gone wrong.  Time and again I see individuals being assessed as lacking mental capacity because they want to do something that their assessor of capacity sees as unwise. Far from empowering individuals to make their own decisions, the Lords have seen evidence that health and social care persists in being paternalistic and risk-averse.

Sadly, for some, having to wait for a judge in the Court of Protection to ‘right the wrong’ will be too late. In one of my current cases, a life might be saved if professionals use the test for capacity correctly (rather than basing a finding of incapacity on historical assessments and P’s attitude to professionals).  If someone who believes they have capacity is assessed as lacking capacity and the power for them to make decisions about the way they live their life is removed, this can be devastating in a way that many of us will never experience.

So as I read the recommendations I decided to comment on it from that point of view. A quick read of the report is enlightening and if we hold the Government to implement these really practical changes, our world will change and so will the lives of so many vulnerable adults.

How is that going to happen?  I want to get to the specifics in a more detailed post (which will be published in full on my personal blog site) but for now, the recommendations shed some really rosy light on how the future could look for my clients if implemented.

Some really great recommendations have been made, such as putting in place an independent body as overseer for the Act; a steering group; giving the CQC a mandate to seek compliance with the Act (last year the CQC employed an MCA specialist, so it is in a good position to do this); educating professionals, carers, families and people affected; and better provision of relevant and timely information about the rapid changes in the law. These are all heart warming and well intentioned.

But what recommendations are going to make a difference for my client who has been disempowered and incarcerated? I have a feeling that Justice may come too late for him and he may give up before the matter can come properly before a judge; but for thousands like him, how can they be helped?

My favourite part of the report is the suggestion to rip up the current legislation relating to Deprivation of Liberty Safeguards.

There was a finding that: ‘the provisions are poorly drafted, overly complex and bear no relationship to the language and ethos of the Mental Capacity Act. The safeguards are not well understood and are poorly implemented.’

If you can, imagine me in a small room, with a middle aged man who doesn’t want to be where he is and doesn’t understand why he is there.  It is my job to explain to him in a way he understands that two assessors have formed the view that he lacks capacity to make decisions relating to where he should be accommodated for care and treatment (which he doesn’t want), and that it is (in their opinion) in his best interests to be where he is.  In addition, because he isn’t eligible to be detained under the Mental Health Act, he can’t access the Tribunal service, which he is more used to. He stopped listening when I said “assessors”.

This is complicated stuff and impossible for people confined against their will for doing absolutely nothing wrong. So I welcome the Lords’ suggestion that we need to start again with this and that the “replacement legislative provisions extend to those accommodated in supported living arrangements.’ This is exciting for all of us who have been crying out for this and I would like to look at their recommendations for changing the regime in more detail another time.

Another great idea is the recommendation to establish a form of self-referral for Independent Mental Capacity Advocate (IMCA) services, to support P’s access to legal representation and challenge the fact that they have been deprived of their liberty in the Court of Protection.

This is intended to prevent the types of delay that have had damaging consequences in the past and would have helped my client avoid his current distress. I really welcome the idea that a family member or individual affected by the Act could self refer to obtain an IMCA. Anyone who has heard me speak about the MCA knows that I have high praise for IMCAs and the Lords have echoed the regard held by so many practitioners. We need more of them and I believe that their timely intervention will avoid unnecessary and costly litigation.

Legal aid is currently available on a non means tested basis for clients who are subject to a Standard Authorisation (SA) and want to challenge the SA in the Court of Protection.  But thousands of people are deprived of their liberty without the protection of a Standard Authorisation and can’t access non means tested legal aid to challenge it. I’ve never understood that.

To end these inconsistencies the Lords recommend that the Government should consider whether some cases merit the same unconditional support as is currently afforded to medical treatment decisions; and review the policy underlying the availability of legal aid for those who lack the mental capacity to litigate and therefore cannot represent themselves.

It is encouraging that the Lords are actively seeking a remedy, but if P cannot access funding it is ridiculous to say that they will be protected by the court. Having read the Government’s proposals for transforming Legal Aid, and as cases with borderline prospects of success have already been removed from scope, I hold out little hope for the extra funding required.  I have referred to that in a previous article (published in the ELJ).

This has been a whistle stop tour of the recommendations that would help the people I try to support. Even better are the recommendations that will support those who haven’t even got close to accessing legal support.

To be continued…