Representing the views and experiences of people directly affected by brain injury, gathered in a Headway consultation with members of the charity, Peter explained to the committee how the complexities of brain injury can often lead to difficulties in assessing capacity.
The Committee's aim was to examine how the Act is working in practice after being in existence for over more than eight years, and make recommendations for how it can be improved.
Peter explained the challenges of defining capacity in people with brain injury, which is especially complex as the condition can change over time. He also highlighted the lack of understanding of both brain injury and the Act among many health and social care professionals, which makes their responsibility for assessing capacity and making best interest decisions all the more difficult, increasing the risk of inappropriate judgements.
At the hearing, Headway called for:
- Guidance on best-interest decisions to be simplified
- Brain injury-specific Independent Mental Capacity Advocates (IMCAs) to be appointed
- A simplification of the process for appointing deputies
- More regular supervision of professionals implementing the Act
The Committee has now released the results of its review. Its findings echo Headway's view that while this legislation is extremely important and includes some vital protections for people who lack capacity to make their own decisions, there are serious issues with capacity assessments and the training given to the staff who are conducting them. The Committee raised concerns about the assessment of capacity by health and social care professionals, recommending better training and information to increase awareness of the Act for those affected, their families and carers, professionals and the wider public.
While the Committee has acknowledged Headway's argument that Independent Mental Capacity Advocates (IMCAs) require condition-specific training, it has stopped short of including this explicitly in its recommendations. Despite this, it has recommended an increase in IMCA availability and that efforts are made to increase consistency of these services. This could present an opportunity to work with the Government to improve the service they provide.
Elsewhere, the report recommends increasing resources to reduce the time taken to make property and financial affairs decisions, and the introduction of mediation to attempt to resolve disputes before they come to the Court of Protection. It also suggests work to raise awareness among professionals and the general public of Lasting Power of Attorneys (LPAs) and Advanced Decisions, in order to allow people an opportunity to make welfare and treatment decisions for themselves in the event they lose capacity.
The Committee's key findings are:
- The Act is not widely implemented. To address this the Committee recommends that responsibility for implementing the Act be given to an independent body.
- The Deprivation of Liberty Safeguards are not fit for purpose. The Committee recommends that they be replaced with new provisions.
Discussing the review, Lord Hardie, Chairman of the Committee, 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 which reflects the empowering ethos of the 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.
"We were very concerned by what we heard about the safeguards. 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. Worse still, in some cases the safeguards are being willfully used to oppress individuals and to force decisions upon them. 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."Back