Health and social care implementation of Mental Capacity Act and Deprivation of Liberty Safeguards criticised by House of Lords committee
Published 14 March 2014
A House of Lords committee tasked with scrutinising the impact of the MCA has produced a report which is extremely critical of health and social care bodies. The report calls for new legislation and sweeping changes to the way professionals and organisations provide care to adults who lack capacity.
The report suggests that while the MCA has the power to transform lives, in practice there are fundamental failings in implementation. The DoLs regime is considered to be so fundamentally flawed that government should legislate from scratch to replace it. Other criticisms are directed specifically at health and social care providers notably:
- Risk aversion and paternalism have inhibited the empowerment the MCA was designed to achieve;
- Professionals have a poor understanding of the MCA and need to be aware of their responsibilities under the Act;
- Compliance with the MCA is not properly monitored internally by services or externally by regulators;
- Professionals do not properly understand or implement LPAs and Advance Decisions;
- Public Authorities do not adhere to their responsibility to initiate court proceedings in cases of dispute;
- IMCAs should be used more often in decisions around care and treatment;
- There is a conflict in practice between the empowerment provided by the MCA and the safeguarding agenda.
Impact for health and social care providers
The key recommendations which would have a real and significant effect if implemented include:
- A completely new DoLS framework with the associated resource implications;
- The creation of a new independent body with responsibility for implementation of the MCA. (This could be freestanding or located within an existing organisation);
- CQC standards which explicitly incorporate compliance with the MCA;
- More frequent use of IMCAs in treatment decisions;
- A requirement for evidenced training and understanding amongst professionals about the MCA generally and particularly assessment of capacity, best interests decision making, LPAs and Advance Decisions.
While it is unclear at this stage to what extent the recommendations will be implemented, and by whom, it is clear from the report that substantive change would be needed in the health and social care sector if the empowerment intended by the MCA is to be realised.
Any legislative change to address the DoLS concerns is likely to be some way off, particularly given that it would now be too late to incorporate it into the Care Bill.
In the shorter term, health and social care bodies are likely to come under increased scrutiny from regulators, commissioners and indeed the public to ensure that their staff understand and implement the MCA both in spirit and detail.
How we can help
- Training: To provide professionals with the necessary understanding to implement the MCA and understand how it interacts with other frameworks such as the MHA and safeguarding;
- Policy review/guidance: To ensure your organisation is compliant with current requirements;
- Case specific input: Fast practical advice when dealing with the complexities of specific cases where capacity and/or treatment and care is disputed.