Monthly Archives: August 2013

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Lawyers claiming Mental Capacity Act misuse


Lawyers have this week told a committee in the House of Lords that as a result of the difficulty in understanding and the complexity of the Mental Capacity Act (MCA) thousands of people who are vulnerable are being arrested and detained against the law and not according to the scope of the Act. A lawyer when presenting his findings to the House of Lords committee stated that the safeguards provided within the MCA under the Deprivation of Liberty Safeguards were only minimal and were overly complex, hard to grasp and too bureaucratic. Further criticisms were aimed at the Court of Protection which is responsible for mental capacity cases in which the person is unable to make a decision for himself. The procedure was said to be overly expensive as well as badly organised and inefficient. The lawyer further added that the procedure in the court needs to have a greater level of flexibility.

The select professionals who appeared before the select committee in the House of Lords in order to give evidence on the MCA 2005 were mutually in agreement that the Act itself was a good foundation and well thought however, they were highly critical of its implementation which did not reflect the Act’s intentions and purpose. The lawyers said that mentally ill patients are not properly assessed or given a evaluation as to their best-interest rather, carers make decisions on their behalf and get on the with the situation. The Court of Protection which is there to offer legal guidance and advice is so far and separate from most carers working in the family environment that it is only a small number of workers who seek advice and help from it.

Katie Johnson who is a policy officer at Liberty the campaigning group stated that the main human rights issue regarding the MCA is that a large number of people are being detained in breach of their protected rights under Article 5 which provides people with the right to liberty and security. Further evidence was orally provided to the committee which pointed out a further flaw in the Act that being that legal aid is granted to disabled people who are victims of physical abuse but the same is not available to persons who are the victims of psychological abuse. The committee will continue with its investigation and is due to compile a report of its findings in the early stages of 2014.