In the words of Lord Hardie, the Mental Capacity Act 2005 was supposed to be a ''turning point in the rights of vulnerable people; those with learning difficulties, dementia, brain injuries or temporary impairment". The Act marked a change whereby the capacity of vulnerable people to make their own decisions was to be presumed and great care taken in obtaining their wishes and making decisions in their best interests.
However in a recent report from the House of Lords Select Committee into the functioning of the Act the committee concluded: "Those who may lack capacity have legal rights under the act, but they are not being fulfilled. In many cases complying with the act is treated like an optional add-on - nice to have, but not essential.”
Whilst the committee felt that the Act was, in the main, held in high regard, the found that the implementation of the Act had fallen far short of expectations.
It was found that the culture in many organisations was too paternalistic with decisions being too often being made for, rather than with, vulnerable adults leading to many being kept in care homes against their will and without the safeguards the Mental Capacity Act is supposed to provide.
The report highlighted the case of Steven Neary, an autistic man who was deprived of his liberty and taken away from the care of his father for nearly a year when his local authority failed to consider his ability to decide where he wanted to live and instead made decisions for him rather than with him and his family.
The report concluded that a single body should be tasked with ensuring that the Act is properly implemented in all areas and made an essential part of working with vulnerable people in all areas.
Having your or a loved one's capacity called into question by a local authority when making decisions about care can be a particularly difficult experience especially when the decision being made relates to important questions such as health or where someone should live.
By Emma McClure, community care team
The community care team at Stephensons are able to offer advice and assistance at all stages of such decisions from initial assessments to court proceedings.