On Thursday, the House of Lords published their report following their investigation of the Mental Capacity Act. 60 witnesses were called and there were over 200 written submissions – it was a very thorough piece of work. Being an MCA and DoLs geek, I’ve been waiting weeks for the publication but I didn’t dream for one moment that it would be so hard hitting and damning as it was. The whole morning, I found myself muttering – “They listened. They bloody well listened”. I’m not sure whether the other professionals who gave evidence felt the same but for a carers’ experience to be heard and taken on board is completely revolutionary. That just doesn’t normally happen in social care. Quite the opposite – there often feels like a deliberate move not to hear the voices of the carers and families.
Going for the jugular from the off, this is what the Lords had to say about the Deprivation of Liberty Safeguards:
“The intention behind the safeguards—to provide protection in law for individuals who were being deprived of their liberty for reasons of their own safety—was understood and supported by our witnesses. But the legislative provisions and their operation in practice are the subject of extensive and wideranging criticism. The provisions are poorly drafted, overly complex and bear no relationship to the language and ethos of the Mental Capacity Act. The safeguards are not well understood and are poorly implemented. Evidence suggested that thousands, if not tens of thousands, of individuals are being deprived of their liberty without the protection of the law, and therefore without the safeguards which Parliament intended. Worse still, far from being used to protect individuals and their rights, they are sometimes used to oppress individuals, and to force upon them decisions made by others without reference to the wishes and feelings of the
The only appropriate recommendation in the face of such criticism is to start again. We therefore recommend a comprehensive review of the Deprivation of Liberty Safeguards with a view to replacing them with provisions that are compatible in style and ethos to the rest of the Mental Capacity Act.”
How about that! Go back to the drawing board. Having been on the receiving end of the abuse of the legislation, this is overwhelming news. And tens of thousands of people being unlawfully deprived of their liberty! All those stats we read on DoLs have always felt meaningless. That’s because they were (are) meaningless. All those hidden people away from their homes – we should be ashamed of that.
I feel a note of caution. I think it would be unwise to scrap them before something better is in their place. For all their faults and the numerous way they are abused by supervisory bodies, in the absence of anything else, they do provide a route for families to challenge the detention. I’ve said many times (and its quoted in the report) that without the DoLs in place, Steven would now be in the hospital in Wales that Hillingdon wanted to send him to. Challenge without a DoL in place is nigh on impossible. Lots of people contact me, where their sons and daughters are in similar situations to Steven in 2010 and they cannot get a DoL authorised for love nor money. Authorities may not want to go down the DoL route because it means their actions will be scrutinised. No DoL means they can effectively do what they like without any external monitoring. So, please, please start the planning for a replacement legislation immediately but don’t leave the people at the mercy of the DoLs even further up shit creek without a paddle.
Another section of the report that had me singing was about capacity assessments. About a year ago, I wrote a series of blog posts about the downright unfairness of forcing the learning disabled to justify and evidence all of their decision making process – something that the rest of the population never have to do. I also felt, that it was extremely unfair that the only thing being measured as proof of capacity/incapacity was the person’s cognitive functioning. What about their feelings? What about their gut instinct? What about their right not to make a decision? The Lords called for a review on how mental capacity assessments are carried out.
The other biggie is the recommendation for an overseeing body who has overall responsibility for the MCA. So simple. We hear time and again of how big systems have no accountability. The awful death of LB in an NHS assessment and treatment unit and the vile actions of the provider, Southern Health, illustrate this only too tragically and shamefully. I’m not sure if one single body will solve all the problems but it’s a very good start. How can the people charged with implementing and carrying out this legislation been allowed to ignore it for so long. The Act is nearly 10 years old for godsake. I don’t buy this stuff about it is still being “bedded in”. And I don’t buy “ignorance” as a wholesale explanation for the failing. The are plenty of examples in the report of authorities deliberately manipulating the Act to get the outcome they want. I can’t think of any other piece of legislation that can be ignored or abused so wantonly without any serious repercussions. You and I would never be allowed to get away with it.
There were many other features of the Neary vs Hillingdon case that showed up in the report as being more widespread than just Hillingdon. The ones that stand out for me are: the poor use of the IMCA service. In our case we were blocked from getting an IMCA for over 6 months. The report recommends consideration to be given to P or their family being able to approach an IMCA service directly rather than have to wait for a referral from the supervisory body. I can die a happy man if that one is taken up. The Lords tackled the best interest assessments and decisions and raised huge questions about them too. Here’s what they recommended:
“The rights and responsibilities of the different stakeholders which are properly conferred under the Act are largely unknown. This makes the effective exercise of those rights, and the proper discharge of those responsibilities almost impossible.
The general lack of awareness of the provisions of the Act has allowed prevailing professional practices to continue unchallenged, and allowed decision-making to be dominated by professionals, without the required input from families and carers about P’s wishes and feelings.
A fundamental change of attitudes among professionals is needed in order to move from protection and paternalism to enablement and empowerment. Professionals need to be aware of their responsibilities under the Act, just as families need to be aware of their rights under it.”
What happens next? That’s the big question. Will this incredible report gather dust somewhere and be forgotten as people go out about their business in the same old way. That can’t be allowed to happen. Everyone with a stake in this must continue to push for the big change to happen. We owe it to all the people who fall within the scope of the Act.