The Inadequate Act

The Witchfinder notes recent criticisms of the Mental Capacity Act 2005 by the judiciary.

Burning Money.

Imagine lots and lots of money, burning. This is functionally indistinguishable from imagining a Deprivation of Liberty Safeguards case in the Court of Protection.

I like Mr Justice Mostyn – he is one of my favourite judges. This article is about a recent public judgement in which – like many others – he has felt the need to comment about the lack of protections for those subject to the Mental Capacity Act 2005 (MCA). The Witchfinder includes no information not in the public judgement.

The case concerns the safeguards that should be made available to a mentally incapable man. The nature of the man’s incapacity is not really important. What is important is the way this judgement further throws into sharp relief the inadequacy of the safeguards under the MCA.

In order to make the judgement less dehumanising, Mostyn refers to the man as ‘George’. George is not his real name. Unfortunately it appears that George is a sexual deviant who needs to be confined, strip searched and to have his phone-calls and correspondence monitored for the safety of others.

Where the problem arises is that such intrusive powers need to be monitored. Not everyone accused of incapacity or challenging behaviour is incapable or guilty, and even if they are, restrictions must still be proportionate and necessary as well as monitored and scrutinised.

If someone is detained under the Mental Health Act 1983 (MHA), then there are a wealth of statutory provisions and guidelines covering such things as confinement, strip search, the monitoring of correspondence. The issue is that, scandalously, as the judge points out – there are no rules – no safeguards – no guidelines under the MCA. “14. In contrast (it might be thought surprisingly), there are no equivalent detailed procedures and safeguards stipulated anywhere for persons detained pursuant to orders made under the Mental Capacity Act 2005.”

In saying this he touches on a facet of a simple but devastatingly important truth. This country has a very, very effective legislative framework for under the Mental Health Act 1983. Unfortunately the not-especially-bright shiny new Labour policy advisors who drafted the MCA, assisted by some even-less-especially-bright civil servants, decided to ignore that and draft their own legislation on the back of a packet of fags.

Of course this is not the judiciary’s fault. Judges have the misfortune to be responsible for implementing legislation whether they agree with it and so in this particular case Mostyn is not to blame. Instead he is helping the Official Solicitor roughly staple some necessary functionality into the act.

Essentially this judgement is about agreeing to a consent order in which the Official Solicitor has agreed with the care home, NHS and local authority a policy statement for governing George’s position that is compatible with the European Convention on Human Rights.

Leaving aside Mosyn’s judgement for a moment it is worth the Witchfinder comparing (for a moment) some of the more general weaknesses of the safeguards available under the MCA as compared to the MHA.

MHA – Section


Covers detention in a hospital for assessment   treatment. Covers placement in a care home or wherever.   Turgid argument about the meaning of Deprivation of Liberty. Implausibly named case law (MIG and MEG – reminds me of children’s book Meg and Mogg).
Appeal form is simple and two pages long. Forms   must be easily available on request. Minimum of 9 pages + statement of facts and   ground + draft order. In reality, lead time is so long need also to consider filing application for interim relief + witness statement. Requires legal   knowledge. Extremely difficult for service user to get forms. May meet objections around litigation capacity – circular argument.
Service user can represent themselves or have a   lawyer. Fruitless circular argument about litigation   capacity, barely compatible with European law see e.g. Stanev v Bulgaria. Occasional cases of service user found to have litigation capacity.
Clear figures available on number of successful   appeals. Number of persons being discharge on appeal approaches 10,000 per   annum. No figures available for successful appeals.   Number of appeals less than 100 per annum. Number of persons found to be eligible for DoLS tiny and highly variable due to pernicious arguments about meaning of liberty.
Judges speak favourably of MHA. See e.g. Jackson J in C v Blackburn With Darwen Borough   Council & Ors at paragraph 35, “In my view, there are good   reasons why the provisions of the MHA should prevail where they apply. It is   a self-contained system with inbuilt checks and balances and it is well   understood by professionals working in the field. It is cheaper than the   Court of Protection. “ Judges criticise and make comments about how   much better MHA is. See e.g. this judgement by Mostyn J or Jackson J in C v Blackburn   With Darwen Borough Council & Ors at paragraph 24, “…It is a truly unhappy state of affairs that the law governing the fundamental rights   and welfare of incapacitated people should be so complex. As this case shows, its intricacies challenge the understanding of professionals working in the field and are completely inaccessible to those for whose benefit the   legislation has been devised, including those with a relatively high level of understanding…”
Cheap. Fabulously expensive High Court proceedings that no one except lawyers, Lucy Series and myself understand required. Can easily burn a £100K of public money at a directions hearing.
Popular – almost no one complains about MHA,   considered accessible whilst doing its job. Hated and mocked. Especially by LSC   Accountants. Useless, inaccessible, expensive, wildly biased in favour of local authorities and riddled with conflicts of interest.
Clear safeguards for strip searches, phone   correspondence monitoring etc. No safeguards for strip searches, phone   correspondence monitoring etc.

In short Mostyn’s measured comments are appreciated. Unfortunately judges are not in a position to make policy. Mostyn quite rightly pushes the government to sort it out, almost like a child forlornly trying to resurrect a toy once favourite but now horribly broken. At paragraph 21 he says – “Of course all this debate would become empty were Parliament or the Executive or the CQC to promulgate rules or guidance to cover the situation which I have here. It is hard to understand why there are detailed statutory provisions relating to personal searches and telephone and correspondence monitoring for high security mental hospitals but none at all for private care homes.”

In this judgement Mostyn is correct, both in his comment and constitutionally by adopting a position of judicial restraint. This is one of the Court’s better judgements. It is to be hoped that Parliament will listen.

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