Tim Spencer-Lane highlights some of the faultlines in the Mental Capacity Act
The introduction of the Mental Capacity Act 2005 (MCA 2005) was celebrated for establishing a groundbreaking legal framework which empowers and protects those who lack capacity. Yet only six years after its implementation, the criticisms of MCA 2005 have grown to such an extent that the House of Lords has established a post-legislative scrutiny committee. So what has led to this apparent volte face?
Poor implementation
The latest monitoring report by the Care Quality Commission found that MCA 2005 was poorly understood and implemented in practice (see Care Quality Commission (2013) Monitoring the use of the MCA DOLS in 2011/12). Practitioners were too quick to assume incapacity in respect of all decision-making, decisions were not always carried out within the best interests framework, and restrictions were being imposed without any consideration of the person’s capacity to consent or the need to maximise decision-making capacity. The report also found that relatives and friends were excluded from decision-making or asked to consent on behalf
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