A recent House of Lords Committee has found that in the worst case, safeguards are being used to oppress thousands of people lacking capacity to force decisions upon them.
The House of Lords committee was set up to investigate how mental health reforms introduced in 2005 are working. The committee said it was so concerned about deprivation of liberty safeguards that they should be scrapped and a new system drawn up from scratch.
They found that measures which were supposed to be used to look after at-risk patients – such as those with dementia who might get lost if they left their care home – were being used on a significant scale to deprive them wrongly of their liberty.
The committee chairman, Lord Hardie said, “we were very concerned by what we heard about the safeguards. The evidence suggests that tens of thousands of people are being deprived of their liberty without the protection of the law, and without the protection that parliament intended. Worse still, in some cases the safeguards are being wilfully used to oppress individuals and to force decisions upon them, regardless of what actions may be in their best interests.”
He said that, “the criticism of the safeguards extended to the legislative provisions themselves; we were told the provisions were poorly drafted, overly complex and bureaucratic. A senior judge described the experience of trying to write a judgment on the safeguards as feeling ‘as if you have been in a washing machine and spin dryer’. Even if implementation could be improved, the legislation itself is flawed. In the face of such criticism, the only option is to start again. The government needs to go back to the drawing board to draft replacement provisions that are easy to understand and implement, and in keeping with the style and ethos of the Mental Capacity Act.”
Lord Hardie also commented on the Mental Capacity Act 2005 that, “when the act came into being, it was seen as a visionary piece of legislation, which marked a turning point in the rights of vulnerable people; those with learning difficulties, dementia, brain injuries or temporary impairment. The committee is unanimous that this is important legislation, with the potential to transform lives. However, what is clear from the substantial volume of evidence we have received is that the act is not working at all well. That is because people do not know about the act, or do not understand it, even though many professionals have legal obligations under it. Those who may lack capacity have legal rights under the act, but they are not being fulfilled. In many cases complying with the act is treated like an optional add-on – nice to have, but not essential. In short, the act is not being implemented. The committee believes that the act is good and it needs to be implemented. What we want to see is a change in attitudes and practice across the health and social care sector which reflects the empowering ethos of the act.”