Transcript

TIM SPENCER-LANE

The Mental Capacity Act of 2005 is a crucial piece of legislation for people who lack decision making capacity. It covers people in England and Wales-- it covers the law of England and Wales, in fact-- and there are a number of important provisions within it. It's still seen as being a visionary piece of legislation, something that's very important in terms of trying to empower people who lack capacity, or who may lack capacity, to enable them to make decisions for themselves, or for best interested decisions to be made on their behalf.

In terms of the two things that are very important about the act, these are mainly kept in the principles. The act sets out a number of principles which may be applied to decisions under the act. There are two key principles in this regard.

The first one is the assumption of capacity. In other words, decision makers must start from a default position that the person is able to make the decision for themselves. It's only when they have reason to believe that the person may lack decision making capacity that a decision can be made on their behalf.

The second important provision is the so-called second principle of the act, the supported decision making principle. So this requires decision makers to provide services and to assist people to try to enable them to make a decision for themselves before deeming that person as lacking capacity to make the relevant decision.

There are a number of challenges to the mental capacity act. The big challenge is the poor lack of implementation of it. There seems to be a lack of knowledge in some sectors, and to be frank, it's not being implemented often in the way that it should be. This was highlighted by a House of Lords post-legislative scrutiny committee report, which came out a few years ago. It praised the mental capacity act, but felt it wasn't being implemented properly in practise, and therefore, recommended more education and more-- an information campaign about the pros of the capacity act and how to comply with it.

There's likely to be big changes in the next 10 years to mental health and mental capacity legislation. This is being driven by two main forces. The first is the United Nations Convention on the Rights of Persons with Disability. This requires law to pay far more attention to the person's wishes and feelings, when it comes to making decisions for a person lacking capacity. So there will be pressure on the mental capacity act to include much more provision for recognising the person's wishes and preferences.

The other challenge is likely to be around the issue of deprivation of liberty. The Law Commission, in 2017, produced a report which recommended that the deprivation of liberty safeguards, which are attached to the Mental Capacity Act, should be overhauled, as a matter of urgency, and replaced with a new scheme, which they call the liberty protection safeguards. The reason for this is that the deprivation of liberty safeguards aren't working properly. They're not providing safeguards in the vast majority of cases, where people lacking capacity are being deprived of their liberty.

It's likely that the government will be looking to introduce new legislation on this subject over the next two years. So there will be, I think, very big changes to the Mental Capacity Act in the coming years.