High level Parliamentary committee asks whether mental capacity laws are working

3 July 2013 by

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Updated | The House of Lords ad hoc Select Committee on the Mental Capacity Act 2005 has now heard three sessions of evidence, and is currently calling for written evidence (deadline 3 September – details here).

The Committee, chaired by Lord Hardie (former Lord Advocate) and including such heavy-hitters as Lord Faulks (Ed Faulks QC as was) and Baroness Hollins (former President of the Royal College of Psychiatrists and current President of the BMA), aims to “scrutinise the legislation to see if it is working as Parliament intended” and to examined “whether the Government’s implementation programme was effective in embedding the guiding principles of the Act in every day practice, and whether there has been a noticeable change in the culture of care.”

The evidence so far has already covered a lot of ground – the compatibility of the Act with the UN Convention on the Rights of Persons with Disabilities, the effectiveness of and ethos behind the Deprivation of Liberty Safeguards (DOLS) and the vexed relationship between the MCA and the Mental Health Act, the Winterbourne View scandal and the workings of the Court of Protection – and that was just day one. Day two revisited some of the same topics, also touching on such important subjects as the availability of legal aid in Court of Protection matters.

The Committee is hearing from a range of witnesses from civil service, NGOs, charitable bodies, lawyers and academics. Invidious as it is to pick out individuals, the evidence Professor Richard Jones from the second evidence session makes lively if troubling reading on the implementation and day-to-day functioning of the Act and DOLS in particular.

The Committee has also published a call for evidence to gather examples of individuals’ experience of the Act in practice, stating “We welcome all views from experts and those having first-hand experience of the Act, and would encourage anyone who has an interest to send us their evidence and contribute to the debate.”

An interesting foretaste of the Committee’s likely findings came in the comments of Baroness Browning comparing the Act to the proverbial “curate’s egg” and commenting that “our report will show, I hope, from the evidence we have received, what needs to happen to make the Mental Capacity Act more effective and fit for purpose. I am basically saying that I [do] not think it is fit for purpose.”

Those with time on their hands can watch the sessions live on www.parliamentlive.tv. They are also open to the public. Transcripts of the evidence sessions are available here. I would highly recommend the digest and commentary on the sessions which Lucy Series has produces on The Small Places blog.

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4 comments


  1. Hello UKHRB, thanks for the link! I just wanted to bring to the attention of people considering submitting evidence about their experiences of the Court of Protection a reminder about contempt and parliamentary privilege: http://thesmallplaces.blogspot.co.uk/2013/07/parliamentary-privilege-and-mental.html

    Hi Richard McTaggart, it’s great to hear people taking an interest in the UN CRPD. You are absolutely right, it does contain a right to independent living (that’s Article 19). You can read what the Joint Committee on Human Rights had to say about the right to independent living in the UK here:
    hthttp://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/inquiries/parliament-2010/protecting-the-right-of-disabled-people-to-independent-living/

    Under the CRPD there is a right to be supported in exercising legal capacity (Article 12) and a right to accommodations in order to be able to access justice (Article 13), but no straightforward right to legal assistance. However, it might be an implied right if it was necessary to support a person exercising their legal capacity or accessing justice (for example, to help them in court proceedings, or to explain a contract, etc).

    It’s worth bearing in mind that the CRPD can’t be enforced directly in the UK courts, although it is a ‘persuasive authority’ for interpreting other areas of law.

  2. truthaholics says:

    “The state spends much time and effort persuading the public that
    it is not really what it is and that the consequences of its actions
    are positive rather than negative.”

    ~ Hans Hermann Hoppe

    (1949-) German-born academic, libertarian theorist, Austrian School economist
    Source: A Theory of Socialism and Capitalism

  3. although I am not a lawyer*
    I am a disabled person!
    I suffered a brain-heamorrhage in 1990*
    I’ve taken an interest in human-rights!
    in particular the UNCHRDP*
    as I understand it,
    there is an article there that gives disabled-people the right to legal-asssistance*
    also as the UK* ratified this treaty in 2007,
    that should give the right to Independent-living,
    under EU* and UK* LAW?
    if anyone can confirm this*
    repies will reach me by E/mail
    thanks*
    Richard*

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Aarhus Abortion Abu Qatada Abuse Access to justice administrative court adoption ALBA Allison Bailey Al Qaeda animal rights anonymity Appeals Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 7 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders charities Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus Coroners costs court of appeal Court of Protection covid crime Cybersecurity Damages Dartmoor data protection death penalty defamation deportation deprivation of liberty Detention diplomatic immunity disability disclosure Discrimination disease divorce DNA domestic violence duty of candour duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal enforcement Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance football foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza gender genetics Germany gmc Google government Grenfell Health healthcare high court HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Jalla v Shell Japan Japanese Knotweed Judaism judicial review jury trial JUSTICE Justice and Security Bill Land Reform Law Pod UK legal aid legal ethics legality Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health military Ministry of Justice modern slavery monitoring murder music Muslim nationality national security NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal Parole patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Private Property Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries public law Regulatory Proceedings rehabilitation Reith Lectures Religion RightsInfo Right to assembly right to die right to family life Right to Privacy Right to Roam right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence sexual orientation Sikhism Smoking social media Social Work South Africa Spain special advocates Sports Standing statelessness Statutory Interpretation stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine UK Supreme Court unduly harsh united nations unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks Wild Camping wind farms WomenInLaw YearInReview Zimbabwe
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