Mental Capacity Act 2005: ‘depressing’ lack of awareness and ‘blatant disregard’ for the law

Criticisms of the knowledge and usage in practice of the provisions of the Mental Capacity Act 2005 have been made by both the Law Society and the British Association of Social Workers.

In response to a call for written evidence by the House of Lords Select Committee on the Mental Capacity Act 2005, both organisations set out submissions identifying the areas in which it was felt that poor implementation of the Act was failing vulnerable adults.

The House of Lords Select Committee on the Mental Capacity Act 2005 was appointed to consider and report on the Act. Publishing the call for evidence earlier this year, Chairman of the Committee, Lord Hardie, said:

"We will be examining whether the Government's implementation programme was effective in embedding the guiding principles of the Act in every day practice, and whether there has been a noticeable change in the culture of care. We need to know how well the Act is understood by those who are affected by it. And we are very interested to hear about whether the safeguards contained in the Act are sufficient: are people able effectively to challenge decisions made under the Act? Is the Court of Protection accessible to those affected?"

Responding to the call for evidence, the Law Society reported a ‘depressing' lack of awareness of the Act among professionals working with vulnerable adults. Where professionals were aware of the Act, they often lacked the skills to put it into practice. Nicola Mackintosh from the Law Society's Mental Health and Disability Committee said:

"Unfortunately, professional training for key front line staff has not kept pace with the increasing complexity of community care. We would like to see more training on the legal framework and practical application of the MCA.

Safeguarding the dignity and wellbeing of people with impaired capacity should be a priority for government. Solicitors often handle the aftermath of poor implementation of the Act and it is essential that steps are taken to increase awareness so our most vulnerable citizens are not at risk."

The British Association of Social Workers had similar concerns, reporting that some professionals showed ‘blatant disregard' for the law. In evidence the Association said:

"The problem is not the Act but one of implementation and embedding the changes as this can be seen to be patchy even in statutory services let alone in care homes and individual family carers."

The British Association of Social Workers pressed the Committee for guidance appropriately tailored to the different professional groups who rely on the Act's provisions in their work with vulnerable adults. The Law Society also felt that the MCA Code of Practice should be updated and made more accessible to groups that rely upon it as an authoritative source of guidance and that abridged versions should be produced that were designed to provide relevant information to carers and family members.

Both the BASW and the Law Society had criticisms relating to the Deprivation of Liberty Safeguards contained in the Act. The BASW felt that the process was overly bureaucratic, often failed to improve individuals' rights and was generally over-relied upon. The Law Society felt that The Deprivation of Liberty Safeguards were too complex and were not always used when they should be. The Society called for urgent review of the regime. Nicola Mackintosh said:

"The DoLs protections can only be used for those detained in hospitals and care homes. They need to be extended to also protect the increasing number of people placed in 'supported living', whose numbers may increase still further as a result of the government's response to the Winterbourne View scandal."

BASW said that the Care Quality Commission (CQC) should be handed statutory powers directly related to the legislation and how it is used by local authorities and professionals.

The Law Society also urged that the Hague Convention on the International Protection of Adults should be ratified for England and Wales - as it has been for Scotland - to extend the Convention's intended provision of mutual recognition of ‘measures of protection' to citizens of England and Wales.

The Committee heard evidence from carers groups and from advocacy services providers in July this year. It will hear evidence from the British Association of Social Workers and the College of Social Work on 8 October 2013. The reporting deadline is 28 February 2014.