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House of Lords review backs BASW concerns at Mental Capacity Act implementation

A House of Lords review of the Mental Capacity Act has backed a BASW proposal for oversight of its currently “patchy” implementation to be given to a single independent body.

In a submission to the Lords Select Committee on the Mental Capacity Act 2005, BASW called for the Care Quality Commission to be handed legal powers to make sure local authorities and different groups of professionals use the law properly when determining whether people are unable to make decisions for themselves.

Supporting the findings of a wide-ranging House of Lords review, BASW said social workers and other professionals also need specifically tailored guidance for the way they work with people with decision making problems, instead of the “voluminous amounts of information” they currently have to wade through.

Publishing a report, the Mental Capacity Act 2005: post-legislative scrutiny, peers described the law as “a visionary piece of legislation” aimed at enabling individual to take their own decisions as far as possible, but that “its implementation has not met the expectations that it rightly raised”.

Peers were scathing about the Deprivation of Liberty Safeguards (DoLS), added to the Mental Capacity Act by the Mental Health Act 2007 following a European Court case with the aim of providing legal protection for individuals deprived of their liberty for their own safety. Calling for “a comprehensive review” of DoLS, the review found: “The only appropriate recommendation in the face of such criticism is to start again.”

BASW offered its support to the proposal “providing the review is undertaken properly and engages thoroughly with all stakeholders, including social workers”.

Many of the review’s findings echoed BASW’s submission to the Select Committee on the Mental Capacity Act 2005, in which the Association made clear its support for a law which assumes people have capacity unless proven otherwise and where they lack capacity for them to remain involved in decisions about them.

BASW’s Joe Godden said: “The 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.

“We agree with the Lords report that while the Act continues to be held in high regard there is a lack of awareness and understanding about its provisions.

“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 how it is understood, as one of our members told us: ‘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 with individual family carers.’”

Urging peers to take steps to make professionals adhere to the MCA, BASW’s submission in August 2013 called for the Care Quality Commission (CQC) to be handed statutory powers directly related to the legislation and how it is used by local authorities and professionals.

The submission described the DoLS process as overly bureaucratic and often failing to improve rights of the people.

The submission did indicate that an excessive inclination among professionals towards using the Deprivation of Liberty Safeguards may be changing, 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.”

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”.

See House of Lords review in full

Read BASW's submission