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.You might also be interested to read this recent exchange about the DOLS before the House of Commons Health Committee. I think Rosie Cooper asks a very good question about why we are so tolerant of de facto detention by the medical and social care professions, so long as there is no malicious intention, when we would not be so tolerant of well intentioned de facto detention by, say, the police. There was also discussion of the vagaries of the meaning of deprivation of liberty (what does 'deprivation of liberty' mean, asks an MP - 'what an interesting question', responds the representative of the Royal College of Psychiatrists), the forthcoming Cheshire case, reminiscences for the good work by the disbanded DOLS team at the Department of Health, expressed concern about the lack of safeguards in supported living (including a rather out of touch suggestion that everybody in supported living will have had capacity to make a tenancy...). In my view the problems with the appeal mechanism and variability in application of the DOLS weren't really drummed home enough, but it's a start - and hopefully this House of Lords scrutiny will be an opportunity to air such concerns.
Thanks very much to Roger H for bringing the House of Lords and Health Committee news to my attention.