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Family Law

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Court of Protection Practice and Procedure Conference 2016

A comprehensive guide to best practice and current thinking

13 MAR 2014

The Mental Capacity Act is failing

Journals Manager & Online Editor


Vulnerable adults are being failed by the Act designed to protect and empower them.

Social workers, healthcare professionals and others involved in the care of vulnerable adults are not aware of the Mental Capacity Act, and are failing to implement it. That is the key finding of the House of Lords Committee established to scrutinise how the Act is working in practice, as outlined in its report published today.

The Committee is recommending that an independent body is given responsibility for oversight of the Act in order to drive forward vital changes in practice. The Committee also found that the controversial Deprivation of Liberty Safeguards (DoLS), inserted into the Mental Capacity Act in 2007 by the Mental Health Act, are not fit for purpose. The Committee is recommending that the DoLS be replaced with legislation that is in keeping with the language and ethos of the Mental Capacity Act as a whole.

Chairman of the Committee, Lord Hardie, said:

‘The Committee believes that the Act is good and it needs to be implemented. What we want to see is a change in attitudes and practice across the health and social care sector which reflects the empowering ethos of Act. To achieve this we recommend that overall responsibility for the Act be given to an independent body whose task will be to oversee, monitor and drive forward implementation.

Our other key finding concerns the Deprivation of Liberty Safeguards. The intention of the safeguards is to provide legal protection for people who are being deprived of their liberty for their own safety. The evidence suggests that tens of thousands of people are being deprived of their liberty without the protection of the law, and without the protection that Parliament intended. The Government needs to go back to the drawing board to draft replacement provisions that are easy to understand and implement, and in keeping with the style and ethos of the Mental Capacity Act.'

The Committee further recommends that:


  • Government works with regulators and professional bodies to ensure the Act is given a higher profile in training, standard setting and inspections;
  • Government increases the staff resources at the Court of Protection to speed up handling of non-controversial cases;
  • Government reconsiders the provision of non-means tested legal aid to those who lack capacity, especially in cases of deprivation of liberty;
  • Local Authorities use their discretionary powers to appoint Independent Mental Capacity Advocates more widely than is currently the case;
  • Government addresses the poor levels of awareness and understanding of Lasting Powers of Attorney and advance decisions to refuse treatment among professionals in the health and social care sectors;
  • Government review the criminal law provision for ill-treatment or neglect of a person lacking capacity to ensure that it is fit for purpose.


The Committee also recommends that the House of Lords seek an update from the Government 12 months from now to find out what they have done in response to their key recommendations.

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