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Patchy implementation of Mental Capacity Act needs tackling, peers told

The Mental Capacity Act offers vital safeguards for people unable to make decisions for themselves but its implementation is patchy and some professionals continue to show “blatant disregard” for the law, BASW has told parliamentarians.

Giving written evidence to a House of Lords Select Committee on the Mental Capacity Act 2005, BASW also called for revised guidance, tailoring “voluminous amounts of information” for different professional groups and ensuring service users and carers get information that is more “meaningful to their circumstances”.

The BASW submission followed a call for evidence from the select committee, which is aiming to establish the extent to which the Mental Capacity Act 2005 (MCA) has achieved its aims, the areas in need of amendment and whether its principles and definitions of capacity are appropriate.

BASW’s evidence gave the peers insight into the Act’s strengths but also its frailties: “The Act sets out a clear decision-making process and in addition to the underlying principle of always assuming a person has capacity, stipulates that where a person does not have capacity for specific decisions, they participate as much as possible in any decisions made on their behalf, and that these are made in their best interests.

“However, we consider that there is a problem with implementation; this view is captured by this quote from one of our members: ‘The problem is not the Act but one of implementation and embedding the changes as this can be seen to be patchy even in statutory services let alone in care homes and individual family carers.’”

The Association’s evidence also expressed concern at the use of the Deprivation of Liberty Safeguards, introduced in an amendment to the Act in an attempt to ensure that people in care homes and hospitals are looked after in a way that does not inappropriately restrict their freedom.

The submission described the DoLS process as overly bureaucratic and often failing to improve rights of the people. The excessive inclination towards using the Deprivation of Liberty Safeguards may be changing, BASW noted, however. “We have observed encouraging signs that service providers are placing greater efforts on alternatives to restrictions under DoLS by providing for example different activities and changes in care environments. Providers are thinking more carefully about whether it is imperative that they draw on the DoLS powers.”

Urging peers to take steps to make professionals adhere to the MCA, BASW said the Care Quality Commission (CQC) should be handed statutory powers directly related to the legislation and how it is used by local authorities and professionals.

Read the written evidence in full here