From Hansard, House of Lords, 14th May 2013:
Mental Capacity Act 2005 Committee — Motion to Approve
3:09 pm
Moved by Lord Hill of Oareford:
That it is desirable that a Select Committee be appointed to consider and report on the Mental Capacity Act 2005, and that the Committee do report by 28 February 2014.
Motion agreed.
The conclusions of the Winterbourne View review re-emphasised the need to appoint such a select committee. This had originally been mooted within the First Report of the Lords’ Liaison Committee, published in March 2013 under the title ‘Review of select committee activity and proposals for new committee activity’:
A post-legislative scrutiny committee on the Mental Capacity Act 2005
52. The Ministry of Justice published the post-legislative scrutiny memorandum for the Mental Capacity Act 2005 in October 2010.Following publication of the post-legislative memorandum the House of Commons Select Committee on Justice held an evidence session with the Public Guardian and the Director of the Royal Courts of Justice Group, and the House of Commons Health Select Committee has similarly heard a limited amount of evidence.
53. The Act provides a legal framework for making decisions on behalf of adults whose mental capacity is impaired. It was substantially amended by the Mental Health Act 2007. The Mental Capacity Bill was subject to pre-legislative scrutiny. A post-legislative review of the Act would not only provide an important opportunity to consider the issues above but it could look at how the pre-legislative scrutiny process influenced the passage of the Bill, whether issues that were raised in pre-legislative scrutiny were ignored and whether any such issues have led to problems since the Act came into force.
54. The Government’s post-legislative memorandum suggested that the legislation was working well other than in a few “small and technical” areas. This view was broadly upheld in 2010 by the Public Guardian’s evidence to the Justice Committee. Since that date concerns have been expressed that the procedural safeguards in the Act may be inadequate to satisfy the requirements of the Human Rights Act 1998. The Mental Capacity Act was amended in the light of the Bournewood judgment which found the UK in breach of Article 5 of the ECHR. The recent findings about the treatment of residents at the Winterbourne View care home, together with a recent Mencap report highlighting deficiencies in the care of mentally disordered patients, suggest that the legislative regime for mentally incapacitated adults would merit scrutiny by a House of Lords post-legislative scrutiny committee. Such scrutiny could include consideration of external oversight of the decisions made on behalf of incapacitated individuals by medical professionals and guidelines on “best interests” decisions, where social workers and others have taken over decision-making in areas such as personal welfare, type of care or financial affairs on someone else’s behalf.
55. We recommend the appointment of an ad hoc post-legislative scrutiny committee to examine the Mental Capacity Act 2005, to report before the end of the 2013-14 Session.
Rescare will monitor developments with regard to this proposed committee, especially to the taking of evidence…