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House of Lords Select Committee on the Mental Capacity Act 2005

The House of Lords appointed this committee on 16/5/13, has called for written evidence to be received by 2/9/13, and will report by 28/2/14.

Recommendations

The following is the 'easy-read' version of the 39 recommendations (without the pictures or headings) for those who want to have an initial skim-read.

(1) Everyone needs to be told more about the MCA, including staff, people who use services, carers and families. (See point 12 as well.) (2) The Government needs to check how much the MCA is used in health and social care and other areas, from banks to the police. (3) There are lots of organisations that should make sure the MCA happens. But it’s not working. We want a single organisation to be in charge of making sure the MCA happens. It should be separate from government. They should write a report each year on what they are doing. It should include people who might be seen as unable to make decisions as well as their families and carers. (4) A government group, called the MCA Steering Group, should be asked to look at how the organisation should do its work and who should be in the organisation. (5) CQC should check health and social care services are using the MCA in the right way and people are getting their rights. (6)-(11) Professionals must get more training about using the MCA. The people who buy services must be made to use the MCA. All the organisations in charge of professionals should be told to help make the MCA happen. (12) Different people need different information about the MCA. All the people who need to know about the MCA, from people who use services to lawyers, must have the information they need about the MCA. In the ways they need it. This information needs to be good and kept up to date by the organisation in charge of making the MCA happen. (13)-(21) The next part (13 to 21) is all about the Deprivation of Liberty Safeguards (or DoLS). These are rules about people who are made to stay in a hospital or care home. They are meant to give people rights and make sure they are looked after properly and kept safe. (13)-(17) & (20)-(21). These rules (DoLS) need to be done again. They were meant to give people rights and make sure everything was done properly. They are very complicated, not good enough and not always used. The new rules need to: (a) be clear why they are needed; (b) be much easier to understand; (c) fit in with the rest of the MCA which people like; (d) make sure everyone who needs it has the protection of these rules. This includes people in supported living and in mental health wards. (18) Your local council can agree for a person to speak up for you. They are called an RPR (Relevant Person’s Representative). This needs to be made better so the right person gets the job and they are listened to. (19) The people who decide that someone should be made to stay in a hospital or care home should be checked themselves. To make sure they’re doing it properly. (22)-(24). Some people can get an advocate called an IMCA. IMCA means they are working under the MCA rules. People said these advocates were good and wanted them to do more. We think so too. IMCAs should be: (a) trained; (b) asked to be involved sooner; (c) asked to be more involved as well. People should be able to ask for an IMCA themselves. (25)-(26). If you are able to make decisions, you can say who you would like to make them for you if you can’t anymore. This is done using a legal document called an LPA or Lasting Power of Attorney. This puts in writing who can make decisions about things when you can’t. (25) Staff need to know more about LPAs and how the person named in one can make decisions for someone else. Councils need to tell people about LPAs and what they can do. We need new rules about what to do if services and others do not do what someone with an LPA has asked them to do. (26) You can write down that you do not want a particular treatment in the future when you might not be able to make a decision about it. This is called an Advance Decision. This helps if you are unable to say what you want because you are too ill. People need to know you can do this. Staff need to know people can do this and follow what has been written down. Health staff need to talk to people early on in an illness to help do this. These decisions need to be kept on patient’s records. (27)-(31) When someone can’t make a decision, there are some things that need to go to a special court to be decided. This is called the Court of Protection. They need to have more staff who can make decisions so it doesn’t take so long. The court is making changes to be more open so people can see what they do. We think that is a good thing. They need to be able to put their own words on their website so people know what they do. Before a problem goes to court, other ways to sort it out should be tried. New rules are needed about helping a case go to court. This is really important if it is the person who they think can’t make a decision who wants to do that. (32)-(34) We know there is not enough legal aid money to pay for everything. But we need to make sure people who have been seen as unable to speak up in court for themselves can still go to court if they need to. This is really important when someone is being made to stay in a hospital or care home. We want the government to look again at how much money there is to pay for people to speak up for them. (35) There is a law in the MCA about not neglecting or treating badly people who can’t make a decision. There have not been many cases that have gone to court using this law. Even the staff at Winterbourne View did not get charged with breaking this law. We think the government should look at this part of the MCA to make sure it does what it is meant to do. (36)-(39) We think the MCA should be checked more often to see if it is working properly. The right people to make sure this happens would be the organisation that is put in charge of the MCA (see point 3). They should also check what staff, people who use services and others think about decision making to see if any changes have happened. And we want a check made to see what changes have been made by government over the next year.

External links

Parliament website

Committee home page (with links to all relevant documents)

House of Lords Select Committee on the Mental Capacity Act 2005, 'Mental Capacity Act 2005: post-legislative scrutiny' (HL Paper 139, 13/3/14)†. This is the final report.

Parliament website, 'Lords scrutinises Mental Capacity Act 2005 and asks: Is it working?' (press release, 26/6/13)

Select Committee on the Mental Capacity Act 2005, 'Call for evidence' (26/6/13)

Other

Richard Mumford, 'High level Parliamentary committee asks whether mental capacity laws are working' (UK Human Rights Blog, 3/7/13)

Jonathan Rayner, 'Thousands of UK citizens "detained unlawfully"' (Gazette, 12/8/13)

Lucy Series, 'Blimey' (The Small Places Blog, 13/3/14)

Alex Ruck Keene, 'The House of Lords has spoken - in no uncertain terms' (Mental Capacity Law and Policy Blog, 13/3/14)

Alex Ruck Keene, 'The House of Lords Report 2 - a longer discussion' (Mental Capacity Law and Policy Blog, 13/3/14)

Ministry of Justice and Department of Health, 'Valuing every voice, respecting every right: making the case for the Mental Capacity Act' (Cm 8884, 10/6/14)

Andy McNicoll, 'Government rejects call to scrap Deprivation of Liberty Safeguards' (Community Care, 10/6/14)