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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