Misuse of the Mental Capacity Act
The Mental Capacity Act 2005 legislation was brought about to protect the rights of vulnerable people, the Act places the individuals best interests at the forefront of decision making and capacity is always presumed until proven otherwise.
The 2005 legislation came under criticism after it was claimed that tens of thousands of vulnerable people in Britain are being forced into care homes resulting from the misuse of the Mental Capacity Act. Instead of having their best interests at the forefront of decisions they are being deprived of their liberty under the law, when it is actually believed that many vulnerable people could have stayed in their homes. Lord Hardie, a retired Judge said ‘In some cases the safeguards are being wilfully used to oppress individuals and to force decisions upon them.’ (Daily Mail, 2014).
The House of Lords Committee have warned that too many people are not aware of the Mental Capacity Act. The committee believed that the complexity of the Deprivation of Liberty is not properly understood by professionals and there have been calls to scrap it and replace it with simpler codes.
Parliament has made a list of 39 recommendations in the report, ‘Mental Capacity 2005: post-legislative scrutiny’. Some of these are:
• An independent body should take overall responsibility for the running of the act and oversea and monitor how it is being used
• Addressing poor implementation of the Act• Replacing the Deprivation of Liberty Safeguards with new codes that fit with the rest of the Mental Capacity Act
• For the Deprivation of Liberty Safeguards to have a clear action plan to accompany any new legislation
• Training for professionals on the Act
• Access to advice and information for professionals• Local authorities should allocate Independent Mental Capacity Advocates more widely to those who need them
• For the Court of Protection to increase staff levels to reduce the time taken for completion of non-controversial cases.
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