Mental Capacity Act 2005: post-legislative scrutiny: report of session 2013–14

GREAT BRITAIN. Parliament. House of Lords. Committee on the Mental Health Act 2005
Stationery Office
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The Committee’s key finding in this evidence-led inquiry is that the Mental Capacity Act 2005 is not widely implemented. To address this, the Committee recommends that responsibility for implementing the Act be given to an independent body. The Committee’s second key finding is that the Deprivation of Liberty Safeguards are not fit for purpose. The Committee recommends that they be replaced with new provisions. This report considers: whether the Act is working as intended in respect of the Act’s five core principles; how to address poor implementation of the Act; advocacy and advance planning; whether the Court of Protection is appropriate (or should there be a Mental Capacity Tribunal instead); and criminal law provisions under Section 44 of the Act. It summarises and refers to cases of unlawful detention under the Act (Steven Neary), and the deprivation of liberty of an autistic man with a profound learning disability, HL at Bournewood Hospital for 32 years. It includes as a good practice example, the work by Jim Blair, a learning disability nurse consultant who explained adjustments made for effective treatment and outcomes for adults with learning disabilities appropriate to their needs. The Committee makes recommendations to Government to: work with regulators and professional bodies to ensure the Act is given a higher profile in training, standard setting and inspections; increase staff resources at the Court of Protection to speed up handling of non-controversial cases; and reconsider the provision of non-means tested legal aid to those who lack capacity, especially in cases of deprivation of liberty. Local authorities should use their discretionary powers to appoint Independent Mental Capacity Advocates more widely than is currently the case. The Government should act on the poor levels of awareness and understanding of Lasting Powers of Attorney and advance decisions to refuse treatment among professionals in the health and social care sectors. The Government should also review the criminal law provision for ill-treatment or neglect of a person lacking capacity, to ensure that the Act is fit for purpose. The Committee recommends that the House of Lords seek an update from the Government twelve months from now to find out what they have done in response to their key recommendations. An easy read version is also available. (Edited publisher abstract)

Subject terms:
mental capacity, vulnerable adults, learning disabilities, mental health problems, Court of Protection, advocacy, Deprivation of Liberty Safeguards, criminal law, Mental Capacity Act 2005;
Content types:
legislation, government publication
England, Wales
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