Motherhood, apple pie and scandal: Second evidence session of the Mental Capacity Act Committee

The House of Lords Committee on the Mental Capacity Act  (CMCA) published its second evidence session today, and the witnesses were Nicola Mackintosh from the Law Society and Mackintosh Law,  Katie Johnston from Liberty, Kirsty Keywood from the University of Manchester Law School and Richard Jones, who needs no introduction.  

The Committee has also published its call for evidence, and submissions are requested on a range of topics concerning the Mental Capacity Act (MCA), the deprivation of liberty safeguards (DOLS), deputyships, Lasting Powers of Attorney (LPAs), advance decisions and - of course - the Court of Protection.  The deadline for evidence is September 2nd this year.  I really hope that lots of people will respond to the call for evidence with their personal experiences, and it won't just be dominated by lawyers and academics and the other usual suspects.  Although there is a list of questions (27!) the call does say the Committee welcomes views on any or all of them, and in no particular order.  So please spread the word, it would be great to get some stories from the front line into the public domain, especially if they came from families and people said to 'lack capacity' rather than just professionals.  I am hoping that organisations like the British Institute for Human Rights, and perhaps advocacy and disabled people's organisations will help people to get the word out about the call for evidence and share their stories.  If you want to find statistics to put in your evidence, I've gathered together quite a few on the MCA, IMCAs, DOLS in this guide.

MCA Committee - first evidence session

The House of Lords Select Committee on the Mental Capacity Act has published the transcript of its first evidence session, heard last Tuesday 18th June.  This opening session heard from government officials, including John Hall (Deputy Director of Family Justice), Nick Goodwin (Deputy Director of Court Tribunal Fees), Anne-Marie Hamilton (Director of the Social Care Quality and Safety Branch, Department of Health) and Claire Crawley (Senior Policy Manager, Adult Safeguarding, DoH).   The evidence is pretty long (43 pages) and full of interesting discussions - ranging from the Mental Capacity Act (MCA) and the deprivation of liberty safeguards (DOLS) to much broader issues like the conditions care staff work in, the support available to family carers, the role of the Care Quality Commission (CQC) and more.  There were a few bits of the evidence session that were of particular interest to me, but it is well worth reading the entire thing if you're an MCA or obsessive.  Overall, I think the Committee asked some pretty good questions, and there was some pretty persistant probing of officials by some members - it will be interesting to see how these issues get taken up in later evidence sessions.

[Edit 27/06/2013: The second evidence session has just been published, with evidence from Richard Jones, Kirsty Keywood, Nicola Mackintosh and Katie Johnston. It's fiery stuff - well worth a read.  I don't have time to write about it today... maybe on my flight home tomorrow!]

Putting the cart before the horse: Resource Allocation Systems and community care

The Journal of Social Welfare and Family Law has published a paper on Resource Allocation Systems (RASs) by Luke Clements and myself.  A pre-publication version can be downloaded from here (doc).  The paper is based on a series of requests made under the Freedom of Information Act about how local authorities developed their RASs, and how they worked.  We consider issues of transparency, which I have discussed before on this blog, but also look at issues like how RASs were developed, how they take into account informal support, whether RAS questionnaires might miss some eligible needs, whether RASs will lead to a more equitable distribution of resources for different groups, and the accuracy of RASs.  Here are the seven conclusions we drew from this research:

ANOTHER inquiry into legal capacity legislation (this time from Oz...)

Another week, another inquiry into legal capacity legislation...  This month, the UK House of Lords and the Equality and Human Rights Commission have both announced forthcoming inquiries or post-legislative scrutiny into the Mental Capacity Act 2005 and the deprivation of liberty safeguards.  Now the Australian government's Attorney-General Mark Dreyfus QC has announced a 'Consultation on draft terms of reference for ALRC inquiry into equal recognition before the law and legal capacity for people with disability'.    Hat tip to Piers Gooding for flagging this up.  The Australian inquiry will consider:

• Commonwealth laws and legal frameworks that deny or diminish the rights of people with disability to make their own decisions and act on their own behalf, and
• what, if any, changes could be made.

Equality and Human Rights Commission announce inquiry into the deprivation of liberty safeguards

The Equality and Human Rights Commission have announced that they will be opening an inquiry into the deprivation of liberty safeguards. The announcement is contained within their Corporate Plan for 2013-14 (hat tip to Local Government Lawyer for spotting this), and states:

The Commission is developing proposals for a formal Section 16 Inquiry to examine policy and practice in care homes and hospitals on the deprivation of liberty of people who lack mental capacity, and the effectiveness of the safeguards currently in use. This issue has been explored with various organisations and individuals, including the Care Quality Commission, Court of Protection Users Groups, Mind, Liberty, barristers and leading academics. Stakeholders have identified some significant problems and flaws in the application of the current safeguard provisions. All have stressed the need for systemic change to ensure that the human rights of people in extremely vulnerable situations are effectively protected.

I haven’t seen any further detail on the specifics of this inquiry, but I will keep an eagle eye on their website.

So, now we have a House of Lords ad hoc committee conducting post-legislative scrutiny of the Mental Capacity Act 2005 because of human rights concerns, and the EHRC conducting an inquiry into the deprivation of liberty safeguards. Interesting times.

Your statistical guide to the Mental Capacity Act 2005

My lovely statistical data from my PhD thesis, which I lovingly gathered and harvested from reports and under the Freedom of Information Act 2000, will not see the light of day in any formal publication any time soon.  Yet, I am contacted very frequently by lawyers, researchers and campaigners asking where they can find data on this, that or the other.  So I decided to turn these data into a statistical guide for your use.  Enjoy.

About the Statistical Guide to the Mental Capacity Act 2005

The Mental Capacity Act 2005 (MCA) affects the personal and workings lives of millions of people in England and Wales. The deprivation of liberty safeguards and the Court of Protection, both established by the MCA, are frequently in the news. There are many interesting developments afoot regarding the Act – not least the forthcoming hearing of two key deprivation of liberty safeguards cases by the Supreme Court (Cheshire and P & Q) and the newly announced House of Lords ad hoc committee on the MCA. The MCA is also of growing interest at an international level as Article 12 of the UN Convention on the Rights of Persons with Disabilities (CRPD) – the right to equal recognition before the law – refocuses critical attention on mechanisms which allow a person’s own decisions to be displaced by another’s on grounds of ‘incapacity’.

My doctoral research focused on the MCA in relation to adult social care, and I amassed a large amount of statistical data on the Act, on the deprivation of liberty safeguards and on the Court of protection – from official sources, by using the Freedom of Information Act 2000 (FOIA) or through the generosity of those working in the court service. In this document I have tried to bring together all the data I have, so that others can use it to inform any teaching, research, campaigning, litigation, journalism or policy work in this area. Please feel free to use the data, tables and figures contained here for these purposes, although please be careful to appropriately attribute them (both to myself, and the original source of the data). I would like to take this opportunity to acknowledge and thank the FOIA officers and their colleagues in the Ministry of Justice, the Department of Health, the Office of the Public Guardian, the Crown Prosecution Service, the Court of Protection and the local authorities I contacted, for all their help and hard work.

The overall picture painted by these data is of an Act whose primary mechanisms are informal – the vast majority of decisions are made under the general defence, and so are not picked up by data on the deprivation of liberty safeguards or the Court of Protection. The statistics show that referrals to Independent Mental Capacity Advocates (IMCA) have been lower than expected, and the number of complaints and litigation resulting from IMCA referrals is concerningly low, suggesting they are only infrequently challenging decision makers or assisting P to do so. Use of the deprivation of liberty safeguards has been underwhelming and extremely variable – it appears there is a postcode lottery in the Article 5 protections offered by the safeguards, both in terms of when they are applied, and how effectively people’s rights to advocacy and challenge are upheld. Despite fairly limited, but growing, use of the Court of Protection under the MCA for welfare decisions and the deprivation of liberty safeguards, it is clear from the comments of the judiciary and the Official Solicitor that these cases are causing a significant strain on resources.

The document is divided into three sections: data on the Mental Capacity Act, the deprivation of liberty safeguards and the Court of Protection. Very limited data is available on the use of the ‘general defence’ under the MCA. I have collated some data on the use of welfare benefit appointeeships, Lasting Powers of Attorney, deputyships, Independent Mental Capacity Advocates and prosecutions under s44 MCA. Using the official data on the deprivation of liberty safeguards and data gathered under the FOIA, I have produced tables and figures showing – for the period 2009-2012 –  the number of applications over time, variation in application rates across local authorities (including an appendix showing each local authority’s per capita application rate using population data), some data on third party referrals, Part 8 reviews and applications to the Court of Protection under s21A MCA and s16 MCA. An additional appendix shows the startling variation between local authorities’ use of s39D IMCAs under the deprivation of liberty safeguards. I have also drawn from data published in the two Court of Protection annual reports, the Official Solicitor’s annual reports and a small amount gathered under the FOIA to produce tables and figures on welfare proceedings in the Court. I reproduce some data on applications for permission, which paint a picture of who is using the welfare jurisdiction of the Court of Protection, a figure shows the growing workload of the Official Solicitor and I present some data on Court of Protection visitors.

I am afraid these data have not been peer reviewed, but if you spot any errors I would be grateful if you could bring them to my attention. If there are any data not contained here that you would find useful, please do let me know – it may be that I already hold it. I am afraid that these data focus more on the welfare side of the Mental Capacity Act, as that is what my doctoral research has focused on.