Lords Committee reports on MCA. So what next?

The House of Lords Select Committee on the Mental Capacity Act 2005 published its report in March. The report is available on line as a PDF.

The two main conclusions were:

This indicative extract is from the report’s Summary:

“Our findings suggest that the Act, in the main, continues to be held in high regard. However, its implementation has not met the expectations that it rightly raised. The Act has suffered from a lack of awareness and a lack of understanding. For many who are expected to comply with the Act it appears to be an optional add-on, far from being central to their working lives. The evidence presented to us concerns the health and social care sectors principally. In those sectors the prevailing cultures of paternalism (in health) and risk-aversion (in social care) have prevented the Act from becoming widely known or embedded. The empowering ethos has not been delivered. The rights conferred by the Act have not been widely realised. The duties imposed by the Act are not widely followed.”

A Rescare member contacted our helpline a few weeks ago to ask “What next?”, to which we were not sure how to reply.

We have now had some time to reflect on this question and scan the Lords Committee Report, particularly the sections in the Introduction, headed ‘The role of post legislative scrutiny”

“The role of post-legislative scrutiny

6. The function of post-legislative scrutiny is to consider legislation in practice; it is not the purpose of post-legislative scrutiny to re-open policy debates which were settled at the time of the passage of the Bill. To fulfil our function we have sought through our evidence-gathering to answer the question of whether the Mental Capacity Act 2005 is working as Parliament intended. It follows therefore that we have focused on the implementation of the Act. Where the evidence has identified gaps in implementation we have reported this and made recommendations for improvement.

7. Post-legislative scrutiny is a relatively new activity for the House of Lords. The first House of Lords Select Committee appointed specifically to undertake post-legislative scrutiny was established in May 2012, “to consider the statute law on adoption”. In its Report, published in March 2013, it made the following comments: “where relevant we have commented on the legislation, but more frequently we have made recommendations concerning practice. One conclusion we draw from this is that legislation is only part of the picture … and there should be more emphasis on practice”.

8. We find significant congruence between that conclusion and our own inquiry. We agree with the Minister of State for Care and Support, Norman Lamb MP, who told us, “You can get it absolutely right on paper but it does not necessarily mean that it happens on the ground and changes people’s lives”.

9. We also note the positive impact an inquiry such as ours can have in shining a light on an area of policy which might otherwise be neglected. When we began our evidence hearings the departmental officials from the Ministry of Justice and Department of Health gave a confident assessment that the Act had been “a success”, although it was conceded that it would take “time to embed”. Since then the Government has seen fit to establish the Mental Capacity Act Steering Group whose main purpose, we were told, is “to agree a joint programme of action to continue to implement the Mental Capacity Act and the Deprivation of Liberty Safeguards”. In our final evidence session on 3 December Lord McNally, then Minister of State for Justice, conceded that while getting the Act onto the statute book had been a success, ensuring that it was fully implemented and understood was “work in progress”.

10. We welcome the establishment of the Steering Group, and we are pleased that Mr Lamb has undertaken to consult with service users, families and carers about whether or not the Act is being used successfully. We also welcome the recognition by Government that work needs to continue on implementing the Act. We hope our report will assist the work of the Steering Group, and have directed recommendations to the Steering Group where appropriate.

11. We also noted the publication in January 2014 of the Care Quality Commission’s report on the implementation of the Deprivation of Liberty Safeguards,12 which adopted a proactive tone in terms of the steps necessary to improve implementation of the Mental Capacity Act. We welcome this approach.”

Looking for more about the Steering Group, we could find information about its establishment (in 2013) but very little on its activities to date. A blog on Small Spaces in Oct 2013 probably gave the clearest backgound info:

“Government responds to the Parliamentary Health Committee’s post-legislative scrutiny of DoLS

Earlier this year, the Parliamentary Health Committee conducted post-legislative scrutiny of the Mental Health Act 2007.  The Committee described the situation regarding the deprivation of liberty safeguards as ”profoundly depressing and complacent’ and gave the government a year to conduct a review and develop an action plan.  The government has published its response to the Committee.

The best element of the response is that they have set up a Mental Capacity Act Steering Group to review the evidence heard by the Committee.  This is great, and hopefully it might go some way towards restoring the vacuum of leadership in relation to the Mental Capacity Act and the deprivation of liberty safeguards, which has been a recurring theme in evidence to the House of Lords Select Committee.”

So it appears that the best reply we can give to our member’s question is ‘wait’; wait for the proposals of the relevant minister (currently Norman Lamb) and of the  Mental Capacity Act Steering Group (whose main purpose, we remind you, “to agree a joint programme of action to continue to implement the Mental Capacity Act and the Deprivation of Liberty Safeguards”). We are just fearful that little will be proposed or (more significantly) implemented before the next election in 2015…