When the Mental Capacity Act, 2005 was introduced its prime intention was to empower and protect vulnerable adults. However, a recent House of Lords Committee report found that in thousands of cases, those who oversee the care of such adults – for instance social workers or health professionals – are failing to correctly implement the legislation and in many cases are barely aware of the Act and the requirements it makes of them.
The Act is underpinned by five key principles: (i) that adults have the capability to make decisions for themselves until it can be proved otherwise; (ii) that a person must be given all practical support to make decisions before it can be shown that they lack said capacity; (iii) that just because a decision may be judged to be ‘unwise’ it should not be seen as evidence that the individual lacks capacity to make it; (iv) that any act or decision made on behalf of a person lacking capacity to decide for themselves, must be in the individual’s best interests, and (v) that any decision made on behalf of an individual who lacks capacity, must be that which least restricts their essential rights and freedoms.
Whilst Lord Hardie, Chair of the Committee, states that, ‘The Act is good and it needs to be implemented;’ he goes on to say, ‘The evidence suggests that tens of thousands of people are being deprived of their liberty without the protection of the law, and without the protection that Parliament intended… Worse still, in some cases the safeguards are being wilfully used to oppress individuals and to force decisions upon them, regardless of what actions may be in their best interests.’
The case of a 21-year-old, Steven Neary of Uxbridge, has been cited as an example of what is going wrong. Mr Neary’s father, Mark, whilst unwell, sought three day’s respite. However, after this period Hillingdon Council, concerned by Steven’s behaviour and weight, took the decision to transfer him to a behaviour unit. It was nearly a year before Steven was allowed to return home. In the interim, Steven’s father felt, ‘helpless,’ and that, ‘I had let him down, lost my own son.’
Hillingdon Council later issued an apology, stating that whilst, ‘Staff were genuinely committed to ensuring that we did the right thing… we need to improve our processes.’
The House of Lords report has recommended that Government needs to ‘draft replacement provisions that are easy to understand and implement, and in keeping with the style and ethos of the Mental Capacity Act.’
Further recommendations include giving the Act a higher profile in training, standards and inspections; that an increase in resources for the Court of Protection would enable non-controversial cases to be handled more speedily; that Government reconsiders the provision of non-means tested legal aid to those who lack capacity, especially in cases of deprivation of liberty and; that the Government review the criminal law provision for ill-treatment or neglect of a person lacking capacity to ensure that it is fit for purpose.
Finally, the Committee has recommended that the Government report back in a year’s time to show how it has responded to the above recommendations.
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