The House of Lords published their review of the 2005 Mental
Capacity Act (MCA) a few weeks ago.
You’d be forgiven for not noticing – it slipped from the headlines
almost immediately. Much like the Act
itself, the select committee findings barely penetrated the public consciousness. The reporting about them was sloppy and
sensationalist in turn, lumping the MCA together with the unwieldy and unworkable
Deprivation of Liberty Safeguards, which were shoehorned into the Act in
2009. The generic “mental health laws” that the news articles referred to were, in fact, not generic at all, but very specific. As the Lords report stated, the Mental
Capacity Act was a “visionary piece of legislation”,
designed to empower and protect those who lack capacity, and which has been
misused due to misunderstanding and a simple lack of awareness.
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| Craiglockhart Hospital, where new treatments for shell-shocked soldiers were explored |
The history of mental health legislation in the UK dates
back to the Act Regulating Madhouses of 1774, which first formalised the treatment
of the mentally ill in society, who were at the time locked in madhouses in
appalling conditions. As legislation
stuttered through the nineteenth century ‘lunatics’ became ‘patients’, the
madhouses were replaced by asylums and laws were introduced to regulate
conditions in them. These developments
continued into the twentieth century, inching towards a more progressive view
of those suffering from mental illness. One of the major breakthroughs, in law at
least, was the 1930 Mental Treatment Act, which permitted voluntary admissions
to mental hospitals. Advances in
psychiatric treatment, accelerated by innovative treatment of shell-shocked
prisoners after WWI, allowed for more patients to be treated and discharged
back into the community. But whilst
legislation and treatment was changing, society’s opinion of those with ‘mental
deficiencies’ was slower to catch up.
The integration of mental hospitals into the National Health
Service in 1948 was critical in instigating a move away from
institutionalisation in the 1950s; a move which was finally enshrined in the
Mental Health Act of 1959. The 1959 Act
sought to bring treatment of mental health in line with treatment of physical
illnesses. It also removed “promiscuity or other immoral behaviour” as grounds for detention and encouraged the development of care in the
community for those suffering from mental disorders. The 1959 Mental Health Act was “heralded as a great piece of liberalising legislation”, but sadly came to be overshadowed by
concerns about “failures of services and abuses of professional power.”
These concerns, fuelled also by changing public perceptions
of mental health, prompted the 1983 Mental Health Act. The 1983 Act put in place stronger legal
controls around medical treatments of mental illness and detention of the
mentally ill, and introduced a Mental Health Act Commission to oversee the
implementation of the Act in practice (now subsumed into the Care Quality
Commission). Notwithstanding some extra
sections inserted in 2007, the 1983 Mental Health Act remains in place today
and provides the statutory framework for providing care to formal mental health
patients.
But there was a gap.
There were no provisions in the Mental Health Act for those patients who
had been informally admitted. The 2005
Mental Capacity Act plugged this hole. The
MCA provided a statutory framework for safeguarding vulnerable people who lack
the capacity to make certain decisions about their life.
The ground-breaking core principle of the MCA is that
capacity is to be assumed unless proven otherwise. The framework of the Act should be used to
support individuals to make their own decisions wherever possible. It recognises the right of the individual to
make unwise decisions. I’ve made plenty
of unwise decisions in my time (see, for example, the scars on my right palm
from taking a metal pan out of the oven with my bare hands), but no one is
questioning my capacity to make the important decisions in my life, such as
where I live or what I do with my money, just as we shouldn’t immediately
conclude that someone with dementia or a learning disability is unable to make these
decisions about their lives. The MCA
makes it clear that capacity is decision-specific.
The ‘best interests’ process set out in the Act ensures that
a person who is found to lack capacity around a certain decision has their
wishes and feelings taken into account, by involving those who care about and
for them. The Act “signified a step change in the legal rights afforded to those who may lack capacity, with the potential to transform the lives of many.”
In theory, the MCA is a wonderful piece of legislation. The majority of professionals who gave
evidence to the House of Lords select committee spoke highly of it. However, the Act has not been implemented in
the way it was intended to be. It is not
entrenched into the practice of health and social care professionals, whose
prevailing cultures of “paternalism (in health) and risk-aversion (in social care) have prevented the Act from becoming widely known or embedded.” Further still, beyond these sectors the Act
and its empowering ethos are scarcely recognised at all. It has far-reaching implications and the
Lords report argues that its uses and application should be more widely publicised
to both service users and their families, as well as amongst other professional
sectors, such as banking and policing.
The central recommendation of the Lords report is the
creation of an independent body to oversee the implementation of the Mental Capacity
Act. This body should also have
responsibility for publicising the Act and raising awareness of it outside of
health and social care. The report also
recommends scrapping the Deprivation of Liberty Safeguards (DOLS) completely
and starting again, which in the light of the recent Supreme Court judgement,
which has made them an even more bureaucratic box-ticking exercise that does little
to truly protect the people it claims to, is urgently required. However, DOLS aside, the Mental Capacity Act is
an incredibly powerful and positive piece of legislation. Spread the word - the more people who know
about it and put it into practice, the better life will be for the people it is
there to help.
See: the Mental Capacity Act (2005): http://www.legislation.gov.uk/ukpga/2005/9/contents
The Mental Capacity Act Code of Practice: https://www.justice.gov.uk/downloads/protecting-the-vulnerable/mca/mca-code-practice-0509.pdf
