Tens of thousands of individuals are being deprived of their liberty without the protection of the law, a report from a House of Lords select committee has claimed.
The Committee on the Mental Capacity Act 2005, which published its review of the Mental Capacity Act 2005 (MCA) this month, described the MCA as a ‘visionary piece of legislation’ that is flawed by ‘patchy implementation’ and requires ‘comprehensive review’.
In particular it states the deprivation of liberty safeguards (DOLS) are ‘poorly drafted… not well understood and poorly implemented’.
The review also pointed to what one contributor described as ‘the ridiculous inconsistency’ around the availability of legal aid for people appealing their detention.
The MCA is intended to protect and support people who do not have the mental ability to make decisions for themselves because of a learning disability, mental illness or condition such as dementia.
The act applies to people aged 16 and over in England and Wales and is also supposed to provide guidance to people making decisions on behalf of someone who lacks mental capacity.
It includes DOLS – procedures to ensure that people are not deprived of their liberty without their cases first being scrutinised in detail and then regularly reviewed.
The MCA has been widely criticised for not achieving these aims. Prominent among the act’s critics are the Law Society’s mental health and disability, and wills and equity committees, which collaborated on preparing a submission to the House of Lords’ review.
They deplored the ‘lack of awareness and understanding of the [MCA] among professionals, lay carers and service users’ and called for more time to be spent during social work training on the ‘legal framework and practical application of mental capacity, DOLS and community care assessments’.
Mental health and disability chair Sophy Miles described the ‘ridiculous inconsistency’ around the provision of legal aid to people wishing to appeal against their detention.
She said that an anomaly had arisen ‘due to the way in which the scope of legal aid has changed from “it’s available unless it is excluded” to “unless a case falls within the list it will be out of scope” [because] it is [now] likely that some cases which were previously within the scope of legal aid may now fall outside,’ following the Legal Aid, Sentencing Punishment of Offenders Act 2012.
Miles added that this had led to the paradox that ‘non-means tested legal aid’ is available for appeals against a local authority acting as a supervisory body to deprive someone of their liberty, whereas appeals against deprivations of liberty authorised by the Court of Protection are no longer eligible for non-means tested legal aid.
This could result in legal aid being withdrawn during proceedings and cases being discontinued, she said.
Miles pointed to this discrepancy as further evidence of ‘mental health matters becoming increasingly marginalised and of the broadening disparity between physical and mental health treatments’. She said: ‘The MCA was an opportunity that should have been seized in both hands, but wasn’t.’
Richard Charlton, chair of the Mental Health Lawyers Association (MHLA), which also prepared a submission for the House of Lords review, said: ‘The principles behind the MCA are so clear that it should have been easy simply to codify existing case law, but somehow the act lost direction in its implementation and, with DOLS, hit rock bottom.
‘It is essential to press on urgently with reviewing the MCA.
‘Proper care plans are needed, as is contact with the families. There is the suspicion that local authorities are saving money by not providing proper supervision, either of DOLS or care generally. Under the Mental Health Act, everything is reviewed on a regular basis. That is how the MCA should work, too.’