Well that was seen as a visionary piece of legislation.
It empowered people who had learning disabilities who suffered from dementia, who had had a
brain injury, or who had other temporary disabilities.
It empowered them to the take decisions, important decisions, in their own lives, whenever that
was possible, without having to rely upon decisions being taken on their behalf by others.
It was described by witnesses as positive, progressive, a wonderful piece of legislation
and therefore that was the measure of it, and it was important for us to see whether
the aims of the legislation were in fact being achieved in practice.
It's a good piece of legislation, it's a good act and it's important that it is implemented.
Well we heard evidence from, which consisted of about 2,000 pages, and came from more than
200 written submissions, and more than 50 witnesses who gave evidence, and the clear
message from that evidence was that the act is not being implemented, the implementation
generally is poor, and in the Health and Social care settings either there was lack of knowledge
about the act, or where there was knowledge it wasn't implemented, in short implementation,
the evidence of implementation was poor.
That was compounded by the attitude of the government, because at the start of the inquiry
the impression created by officials in their respective departments was that implementation
had been effective and it was more or less complete.
As time went on the evidence tended to show otherwise.
The government established The Mental Capacity Steering Committee which was intended to implement
the act, and also the ministers at the end when they gave evidence, they described implementation
as work in progress, and indicated they were looking to us, to the committee for assistance.
The first key recommendation of the committee is the creation of an independent body which
will have responsibility for the oversight and monitoring and driving forward the implementation
of the act.
This body will not be a regulatory body it will have responsibility for all sorts of
issues which are identified in other recommendations such as education, culture change, and so
on.
And the need for such a body is emphasised by the fact that hither-to implementation
has been undertaken by different and disparate bodies with no coordination.
This body will be the answer to that.
The creation of this body will not, of course, remove from the minister the responsibility
for the implementation of the act because there will continue to be ultimate ministerial
responsibility.
Our second key recommendation concerned the deprivation of liberty safeguards, which were
introduced as an amendment to that act in 2007, and in response to the Bournewood Case.
The evidence indicated that these were not understood, their aim was to protect individuals
in certain situations, for instance if you had someone suffering from dementia living
in a care home it may be appropriate to prevent that person from leaving the care home unaccompanied,
in the interests of his or her safety and that's the sort of issue where deprivation
of liberty safeguards might apply.
But the evidence indicated that they weren't understood in the social and healthcare sector,
where they were applied, where they were understood, they were not applied, and the evidence suggested
that lots of people, indeed tens of thousands of people, might be being deprived of their
liberty with the implementation of the safeguards falling upon the Bournewood Case.
Indeed it was suggested and we accepted that the present situation might be equally problematic
as far as the rights of the individual are concerned.
But it wasn't simply the implementation of these safeguards that was a problem, there
was a great deal of evidence from all sources, including judges, who seemed to think that
the legislation was badly framed.
So the answer, the only answer to that was to tear up the provisions altogether and start
again, and hopefully that procedure would involve the same pre-legislative scrutiny
as the main provisions of the act enjoyed, and appropriate legislation would be put in
place for the protection of vulnerable individuals.
The government will respond to our report in two months, after that there will be a
debate in the House of Lords and we recommend that the House revisit this issue in twelve
months time to see to what extent the government has implemented our key recommendations and
other aspects of the report.