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BASW Statement and Response to the House of Lords Select Committee on the Mental Capacity Act 2005, post-legislative scrutiny

HL Paper 139, 13/3/14) and the Supreme Court’s Decision - P (by his litigation friend the Official Solicitor ) ( Appellant) v Cheshire West and Chester Council and another (Respondents)

Importantly the Mental Capacity Act signified changes required in the legal rights afforded to those who may lack capacity, with the potential to transform the lives of many. That was the aspiration, and one BASW strongly endorses.

Since the Act became operational there have been continued concerns raised as to how it has been implemented, noting a number of differences in applying the law not only geographically but also between professionals.

BASW members have reported their experience both from involvement in proceedings before the Court of Protection, acting as Best Interest Assessors and in delivering training, that there are many very dedicated professionals (of all backgrounds) who are trying to implement the MCA 2005 in different settings and often on difficult circumstances.

However in preparing our submission to the House of Lords we also came across serious concerns and examples where even the basic requirements of the MCA [2005] are not being undertaken. In common with many other organisations and individuals submitting evidence to the committee, BASW’s submission identified many reasons for this – not least being the fact that front line services have and continue to be faced with unprecedented changes. In many areas there has been break up of multi-disciplinary and specialist teams working with the most vulnerable service users. Services have seen the loss of many of their most experienced social workers either through redundancy or their redeployment to non-specialist posts.

BASW notes in reading through the submissions made to the select committee [Nearly 2000 pages] the considerable consensus and agreement. Professions across health and social care, advocacy, service user groups, the legal profession, academia etc. presented a strong voice in advising the committee that the Mental Capacity Act is and remains of considerable importance but that much still remained to be undertaken in ensuring its effective application.

BASW welcomed the invite to provide a written submission to the committee and to also attend to give further evidence. Our representatives attending the hearing were impressed by the integrity, thoroughness and commitment given by the committee members in undertaking this challenging and mammoth piece of work.