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Mental Capacity Act 2005

Volume 718: debated on Monday 29 March 2010

Question for Short Debate

Tabled By

To ask Her Majesty’s Government what assessment they have made of the effect of the Mental Capacity Act 2005.

My Lords, I am grateful that time has been found for this debate. I tabled the Question because, since the Mental Capacity Act came into force in October 2005, there has been remarkably little debate about it. I say “remarkably” because this is one of the most important pieces of legislation affecting health and social care that we have seen in my time here. It provides a framework to empower and protect individuals who lack the capacity to make decisions for themselves. These principles are honourable and important, and recognise the state's duty to uphold public safety while respecting the dignity and worth of each human being.

The framework enabled through the Mental Capacity Act reflects the complexity of loss of capacity in terms of its practical, financial and emotional implications. It pushes decision-making to be clearer; to be in the patient's best interests, unclouded by value-laden judgments; and if possible to take into consideration what the person would have wanted. Personally, I have found it helpful to explain to other clinicians why I suggest or do not support a course of action.

I am glad that the noble Baroness, Lady Barker, is here, as she amended the Bill in one of the most important ways. She introduced the concept of advance statements of wishes. This has led to advance care planning. We have not yet gone far enough, but we are moving towards more personalised care. She deserves praise for driving that through.

Overall, the training of staff as outlined in the Act has happened, and the many educational activities included in the Act have had a beneficial secondary effect on care attitudes in general. However, some problems have arisen. Advance decisions to refuse treatment remain a relatively rare occurrence. I am surprised by that. When they are spoken about, they are often misnamed in common parlance as “advance directives”, which leads to unrealistic expectations. Of course, you cannot direct someone to do something to you in advance. If you could, we would have seen unnecessary and dangerous operations or interventions on demand.

The framework for best-interest decisions has perhaps been overinterpreted in some physical care settings, so that things that ought to be done as part of basic care have been excessively deliberated over, and the Act has been used as an excuse for risk-averse rather than risk-intelligent behaviour. The independent mental capacity advocates have proved helpful. I was sceptical about them, but I was wrong. Separately but importantly, the convictions for neglect of vulnerable adults have had a knock-on effect in the protection of vulnerable adults—POVA—orders, making more work for staff but hopefully protecting more people appropriately.

Although awareness in health and social care is not all that it could be, things are going in the right direction—but not fast enough. However, some parts of the bureaucracy have not panned out well. One has to ask of the administrative procedures: how and for whom is the Act working? Does it successfully illuminate the complexities of grey everyday areas by disentangling the overwhelming web of processes that people are faced with, or does it confuse them more? Is the law empowering and reassuring the many people who are touched by the loss of mental capacity, or does it present frightening hurdles?

Deprivation of liberty safeguards and the supporting guidance are not interpreted uniformly, and there has been confusion between the interaction of the Mental Capacity Act and the Mental Health Act. Current case law is bringing some clarification, but would it not be less expensive and more effective to bring together the experts who have experience of this in practice, and to produce better guidance that is more easily interpreted with consistency, so that we do not risk a yo-yo effect from case law decisions?

An essential test is to evaluate the effectiveness of the Court of Protection that was set up under the Act. The court was established to appoint or endorse deputies to act on behalf of someone when they have lost mental capacity. The current president of the Court of Protection, Sir Mark Potter, conceded last October that the court had had,

“its fair share of difficulties in its early stages”.

He is now chairing an ad hoc committee to scrutinise its efficiency which I hope will shine a light on some areas, including the working relationship between the Court of Protection in Archway and the Office of the Public Guardian, now moved to Birmingham.

When a family is anticipating or is in the process of experiencing a relative’s loss of mental capacity, the sudden upheaval in their everyday lives is unimaginable. Therefore, an absolute prerequisite in staff training should be handling applications with efficiency, professionalism and sensitivity. Sadly, recent reports indicate that during the past two years, the Court of Protection has received more than 2,000 complaints and applications for deputyship are taking between three and six months. This is far too long, especially when the loss of capacity is sudden and unexpected. When someone phones the court, they are not allowed to speak directly to the case worker for their case, but surely this depersonalisation of process runs counter to the spirit of the Act. Would the Minister undertake to ask Sir Mark to look at this too?

In terms of protection, the Mental Capacity Act allows for lasting power of attorney to whom a donee can allocate decision-making over legal, financial and health dilemmas in the event of loss of capacity. The demand for this option is huge. In February of this year, applications since the Act’s inception totalled almost 127,000. Although this is a commendable system in theory, experience has revealed severe flaws. Not only does it take weeks to process an application, but the fee charged by most solicitors seems to be about £600 per person, although some charge that sum for a couple. But such a fee represents a lot of money for many people and deters them from proceeding. Moreover, because the processes are slow, some die before their application is ever fully processed. Does the Minister feel that this is satisfactory or will he undertake to look into how the processes can be simplified and made more accessible and affordable for those who want to make plans in the event of losing capacity?

A recent Radio 4 report, for example, cited the case of one gentleman entrusted to take care of his sister’s financial affairs. As her care costs rose substantially, he needed to apply for increased funds. Alongside reported gross discourtesy from the staff at the Court of Protection, he was informed that the process would take up to 21 weeks and that the application for varied allowance carried a fee of £400. This was a predictable scenario. Surely the Court of Protection should operate in a way that is fully prepared for such an eventuality, that of a rise in the costs of care.

In 2008, more than 22,600 applications were made to the Court of Protection, and more than 18,900 in 2009. I appreciate that the staff processing such a volume of applications have an unenviable task. However, it seems that the rigidity of the application process has sometimes eclipsed common sense, to the detriment of staff, applicants and carers. During discussions with a solicitor who specialises in care of the elderly, she cited one scenario of concern to illustrate this. A doctor, supporting her patient’s application for lasting power of attorney, submitted the required medical report but forgot to certify her own date of birth. So the application was sent back on the grounds that it was not clear if this doctor was over 18 years of age, even though she would not be registered to practise as a doctor if under that age. It was made worse by the fact that she was on extended leave when the form came back, resulting in lengthy delays for the elderly and anxious applicant.

That incident is a depressing illustration of an institution designed to meet complex human needs responding in a mechanical and inflexible way. It strikes a discordant note with the very spirit of the Act: to empower and protect. Will the Minister undertake to try to ensure that we do not lose the spirit in which this important and impressive Act was conceived and written?

My Lords, first, I take this opportunity to thank my noble friend Lady Finlay of Llandaff for securing today’s short debate on this extremely important issue. I remind your Lordships that at Second Reading of the original Bill on 10 January 2005, I welcomed the Bill most warmly and paid tribute to the late, lamented Lord Carter, as we scrutinised the draft version of the Bill. I also reminded the House that I had and still have a particular interest in the Bill, now an Act, as joint chairman of the All-Party Group on Learning Disability and as President of Mencap.

Since its introduction in 2007, the Mental Capacity Act has aimed to promote and safeguard decision-making within a legal framework. The legislation rests on the principle that people should be empowered to make decisions for themselves wherever possible, while at the same time protecting people who may lack capacity by providing a flexible framework that places the individual at the head of the decision-making process. That is a fundamentally important principle in improving the lives of people with a learning disability, particularly those who have profound and multiple learning disabilities and therefore complex needs.

Although I warmly welcome the principles and intentions of the Act, I remain concerned as to how it is being applied in practice and the wide discrepancies which may arise when these principles are being implemented. Doctors, health and social care professionals, as well as paid carers, have a responsibility to work in line with the Mental Capacity Act code of practice. However, there still seems to be a great deal of confusion about the Act, with individuals unsure about their responsibilities. This undermines quality of life for many people with a learning disability and fails to recognise the respect and dignity to which they are entitled.

As all noble Lords present are only too aware, when it comes to healthcare, the decision-making framework for a patient with capacity involves the doctor presenting options to the patient and the patient weighing up the potential benefits, risks and burdens of the various options. Doctors need to ensure that their suggestions have not been influenced by discriminatory assumptions simply because that person has a learning disability. The Act allows people to make decisions for themselves and plan ahead for a time in the future when, for any number of reasons, they may lack capacity. For those who have already been assessed as lacking capacity to make a particular decision, such a decision must be taken in their best interests, and a person’s capacity must be assessed on a decision-by-decision basis. A person’s “best interests” means involving the person as much as possible, consulting with those close to them where practical and appropriate, while avoiding discrimination. As is all too apparent, people with learning disabilities face unique difficulties in accessing end of life treatment and care. That is part of a pattern of health inequalities which has been well documented, including those illustrated only too horrifically in Mencap's report Death by Indifference, which told of the deaths of six patients with a learning disability who died because of NHS ignorance and neglect, and has been the subject of two official inquiries since its publication.

Let me tell you about Victoria, who has profound and multiple learning disabilities. In the words of her mother, Jean:

“Victoria was rushed into A&E after a series of seizures. She wasn't responding to medication and needed to be put on a ventilator. The doctor came up and spoke to us. It took me a moment to realize that he was questioning whether we should go ahead with treating Victoria.

He was suggesting that it wasn't worth trying to save her. He didn't know our lovely 33 year old daughter and the quality of her young life. I sometimes wonder what might have happened if I hadn't told him how good her life was when she was well, about her social life and the people who love her”.

This most disturbing story highlights why it is so important that the principles of the Mental Capacity Act are stringently enforced, and underlines the need for proper training for health professionals to complement the guidance which is already in place. Training should cover general disability issues and, specifically, what is a learning disability, as well as meeting health needs and how to communicate with somebody with a learning disability. It should cover issues around quality of life to ensure that doctors do not make discriminatory judgments, as in Victoria's case. In essence, doctors must look at the individual and not just at the disability.

Mencap knows from its research that doctors and health professionals do not always make appropriate best interests decisions, so we are trying in a project entitled “Involve Me” to correct this and by showing how people with profound and multiple learning disabilities can be involved in decision-making. The project is supported by the Renton Foundation—named after the first president of Mencap, the late Lord Renton—and is being run by Mencap in partnership with the British Institute of Learning Disabilities. Staff and people with profound and multiple learning disabilities at four sites are taking part in the project, with each site using a different and creative approach. An interactive DVD and training guide will be produced to show how creative approaches have been used at each site. It will also show how everyone, including staff, families and policy makers, can start involving people with profound and multiple learning disabilities in decision-making. The “Involve Me” project will also be running workshops and conferences. It is an excellent example of how innovative and creative approaches can be used to empower people with grievous disabilities to take more decisions on how they lead their lives, as well as involving them in the benefits of the Mental Capacity Act.

To pile Pelion on Ossa, in June this year Mencap's Getting it Right campaign will be launched in Learning Disability Week to highlight evidence of best practice in the NHS and to ensure better healthcare for people with a learning disability. A key component will be to ensure that healthcare professionals do have training in the Mental Capacity Act. So, we are doing our best and we trust that after the forthcoming election, whichever party is in power, the incoming Government will ensure that even more doctors, health and social care professionals understand and apply the principles of the Mental Capacity Act 2005. While much progress has been made since the introduction of the Act in 2007, a great deal of work still remains to be completed before we can say, as I did at the end of my Second Reading speech five years ago, that,

“many thousands of people will enjoy better support in expressing what they want; and many thousands more will gain greater dignity, better treatment and happier lives. No Member of your Lordships’ House could ask for more than that”.—[Official Report, 10/1/05; col. 51.]

My Lords, the Mental Capacity Bill, as it then was, was the first piece of legislation to be subjected to the then new process of pre-legislative scrutiny. I had the honour to serve alongside the noble Lord, Lord Rix, on that committee. As a result, it was one of the best pieces of legislation that had ever been put through the House. It was the product of considerable effort on the part of Peers from right across the political spectrum.

I congratulate the noble Baroness, Lady Finlay, on starting to complete the equally important process of post-legislative scrutiny. We do not formally have that yet in Parliament, but I have long thought that it is something we should do. Those of us who take part in passing legislation have an intention about how that legislation should work in practice. That is important and I hope that we will develop it in the next Parliament.

Before diving into the detail, I want us to remember that this is legislation for which a broad coalition of people have campaigned for 30 years, because it was necessary to deal with the widespread but largely undocumented abuse of vulnerable people. I thank the noble Baroness, Lady Finlay, for her kind words about me. During the passage of the legislation, it was my intent that advance statements would not simply be used by people to refuse treatment but could also be used to ensure that people were not refused treatment. The examples used at the time were about people with fluctuating mental health conditions who might say, “I know that when I am unwell I may say that I don’t want treatment, but at this moment when I am well, I am saying that I wish you to disregard that”. I am pleased if that has come to pass.

I want to focus on lasting powers of attorney and deprivation of liberty, because those were always predicted to be the two key pillars of the legislation. The noble Baroness, Lady Finlay, highlighted the problems that there have been with the Office of the Public Guardian. Perhaps it was to be expected that when such wide-ranging and detailed legislation came into force there would be difficulties for those who were given the task of implementation. It is now five years on, and it is important to listen to people such as the Law Society and the Mental Health Alliance, to which I am indebted, about how the legislation is working for front-line practitioners. I was pleased that the noble Baroness, Lady Finlay, mentioned the issue of fees during the passage of the legislation at the prompting of my then colleague in Age Concern, Pauline Thompson. We flagged up to Ministers the issue of fees and how we thought that if the issue was not considered it would be a major cause of people avoiding taking out lasting powers of attorney when they should. There is now a significant body of evidence saying that that is so.

I am pleased to learn from the Law Society that the forms used for lasting power of attorney are being reviewed. It is always the case in such matters that the form-filling can be the make or break factor in whether people use legislation that is there for their protection. I am glad that that is being simplified, but I add my voice to those who make the plea that the Office of the Public Guardian should use e-mail. I understand that everything has to be written down and recorded, but if greater use were made of e-mail that would speed things up considerably. The noble Baroness, Lady Finlay, is right to say that it is taking far too long in many cases to register these very important things.

I shall touch briefly on the matter of finance, because I talked a lot about that during the passage of the legislation. Even a lay person reading the financial bits of the newspapers at the weekend, particularly the questions from members of the public who write in with the problems they have experienced with financial institutions, will know that there are difficulties. Nearly every week, somebody writes in about a problem to do with powers of attorney and banks. It is evident that financial institutions are very patchy in the way that they heed this legislation. The Law Society published a practice note, called Powers of Attorney for Banking, which outlines how lasting a power of attorney should be. What are the financial regulators doing to ensure that good practice becomes much more widespread throughout the financial institutions?

I want to talk briefly about the deprivation of liberty. When the concept was introduced under the legislation, as it had to be because of the Bournewood ruling, everybody knew that it was an extremely important concept. We were right, back when the legislation was going through, in guessing that the term “deprivation of liberty” would in itself be a problem. That, plus the lack of a clear definition of it in guidance, has meant that practitioners in care homes, for example, do not quite know what a deprivation of liberty is. They assume that if a deprivation of liberty application is made, they are immediately going to escalate the issue of somebody's care into a heavy legal process.

Would the Minister consider changing the terms? I know that he is not the relevant Minister and therefore do not expect him to be able to answer this, but what is the Department of Health doing to monitor the number of deprivations of liberty which are being registered? Also, is the CQC, as the regulator of care standards, monitoring whether deprivations of liberty are being sufficiently authorised and, where they have, whether they are in fact leading to changes in the care plans of people who are having their liberty restricted?

The Mental Health Alliance continues to monitor the impact of this legislation and has collected quite a lot of evidence from a number of organisations about how it is working. Its key point is, again, the one that we predicted: this legislation represents such a fundamental change of professional practice and attitude that it requires a great deal of training, information and constant publicity. What will the Government be doing, on an ongoing basis, to make sure that practitioners and members of the public understand the legislation and their rights and responsibilities under it? Finally, do the Government intend to revise the code of practice, now that we are a few years into its implementation? We always recognised that the code of practice would have as much importance as the legislation itself, and it was always conceived that that document could be easily amended. Perhaps the time is coming now when that should be the case.

I would have liked to talk about the appointment of independent mental capacity advocates, but I will simply say that there appear to be too few of them. It was always the case that such complex legislation would take a great deal of time to become established and to be good practice. The legislation gave the best possible basis for good practice to take hold. It is now the Government’s job to consider how it is being implemented and to listen to those on the front line who, while they may have criticisms of detail to make, believe overall that this legislation has changed the lives of vulnerable people for the better. We should support that.

My Lords, like the noble Baroness, Lady Barker, I was briefed by the Law Society. I am very grateful for the advice that it gave me and for the advice that I received from a number of individual practitioners to whom I spoke. Like the noble Baroness, Lady Barker, the noble Baroness, Lady Finlay, who introduced this debate, and the noble Lord, Lord Rix, most of us welcome the principles behind the 2005 Act and how it is working, although we accept that some problems have been highlighted in the press. The noble Baroness and other speakers also highlighted some problems this afternoon.

I shall start, as I always do, by being positive and making the point that we believe that the Act, being major legislation—although it is still early days to understand fully its effectiveness—has been a catalyst for cultural and behavioural change among health and social care professionals. It reinforces the position, as the Act makes it clear, that the person involved is at the centre of decision-making whether they have the capacity or not. As I said, I have a number of questions to put to the Minister, and I hope that he will be able to touch on some of them. Even if he cannot, as the noble Baroness, Lady Barker, put it, we need a degree of post-legislative scrutiny of all legislation, so I hope that in due course he will come back to the questions he cannot address in the form of a letter.

The noble Lord will remember that the Act abolished the enduring power of attorney and brought in the lasting power of attorney. However, EPAs that were already in existence—there must have been quite a number since I know that quite a lot of solicitors were encouraging people to take them out in advance of the Act because they thought that there were certain advantages in the EPA over the LPA—can still be used in the future. So, in effect, a number of EPAs are floating around waiting to be activated that could come into play for several years hence. I would be grateful if the Minister could give his view on how many EPAs he thinks are running in parallel with LPAs and whether that is likely to cause any problems. I suspect that it will not, but it is something we must be aware of, particularly given that there is some evidence of a rush of EPAs being taken out in the run-up to the legislation.

Secondly, I want to touch on the application forms, which were also mentioned by the noble Baroness, Lady Barker. Again, the Law Society has made it clear that the original forms were overly long and complex, but I gather that some work has been done on them. However, there are considerable problems with the complex nature of the form. Again, I would be grateful if the noble Lord could outline what work the department is doing in looking at the form again and producing a new one. I imagine that that is a problem not just for the department but also for the Office of the Public Guardian.

Thirdly, banks and financial institutions were quite used to the old EPAs, and there is anecdotal evidence of some problems with LPAs. I appreciate that LPAs go wider than the older EPAs, which covered only property and financial affairs. A lasting power of attorney can cover those areas and health and welfare issues. However, the banks appear to be having problems with them. I do not know whose job it is to deal with the issue and put the message across to the banks to ensure that they have adequate processes in place.

Operational concerns have been raised about both the Office of the Public Guardian and the Court of Protection. The noble Baroness, Lady Finlay, highlighted the issues, so I hope that the noble Lord will look at those bodies to see whether they are operating quite as well as they ought. The noble Baroness referred to the fact that as one located is in Archway and the other in Birmingham, delays arise as things are referred back and forth between them. I imagine that this is a matter that Sir Mark Potter will look at in his review, although I hope that the Minister will also be able to comment on it.

Finally, I come to the deprivation of liberty safeguards, which were referred to by the noble Baroness, Lady Barker. A number of problems have been associated with them, including inconsistency in decision-making arising from a lack of understanding about what deprivation of liberty means and a lack of certainty about when the deprivation of liberty safeguards apply. There is also an issue about lack of awareness of the deprivation of liberty safeguards within healthcare settings.

I appreciate that I have repeated a number of questions that have been put to the Minister, but I am sure he will find a way to answer them all. We look forward to his answer. However, I return to the first point that I and all other speakers made: in general, we welcome the Act. We think it is performing, but there are one or two signs of underperformance that need to be addressed by the department, the Court of Protection and the Office of the Public Guardian. We hope in due course to have answers to them and that where there are improvements to be made they will be made.

I congratulate the noble Baroness, Lady Finlay, on getting the authority from the usual channels to find time for this debate. As I said earlier today, there seems to be a great deal of pressure on time at present—I cannot think why—so the noble Baroness needs double congratulation on finding time for this debate.

If the noble Lord, Lord Henley, will forgive me, we have in this Room three experts on this Act who played important parts in the passage of the Bill from its early days to Royal Assent. We are lucky that they have found time tonight to come and talk about how the Act is doing. I cannot speak for the noble Lord, Lord Henley, but I was no expert on the Act until I read my briefing for tonight. I think the noble Lord, Lord Henley, is more of an expert than I am, but perhaps not much more.

The thing to notice straightaway is how popular this Act is. All sides agree that it has improved the prospects for a large number of people. It was necessary social care legislation, and something that we can all be proud of. I shall do my best to deal with many of the questions raised. I apologise in advance because I may not cover them all, but I am content to deal with those I do not cover in the form of a letter following this debate.

It is nearly 30 months since the Act came into force and a good time to take stock. The Act brought in provisions for people to make lasting powers of attorney. There are two types—one to cover financial matters and one to cover health and welfare issues, which was a new provision. They offer people who have capacity new choices to decide how they are cared for in the future by giving them the opportunity to plan ahead for a time when they may lose capacity. We know that many people take comfort from knowing that someone whom they have chosen will look after their best interests.

I am pleased to tell the Committee that in 2008, 33,653 LPAs were registered with the Office of the Public Guardian and that that number increased to 75,874 last year. Perhaps this shows that we are beginning to ensure that people are aware of how important it is to make an LPA and how it can ensure that their best interests and wishes are taken account of in decision-making should they lose the capacity to make those decisions themselves. If no LPA is in place, an application has to be made to the Court of Protection for a deputy to be appointed, which is a more costly, complex and often longer process than having an LPA in place. I shall return to that.

We promised that we would start to review the Act 12 to 18 months after implementation. My department, the Ministry of Justice, has undertaken two consultation exercises on the provisions of the Act, which have led to a streamlined and simplified LPA form. It has been well received, and informal evidence shows that it has reduced the number of incorrect forms being received by half—from approximately 20 per cent to about 10 per cent. The first consultation also led to a reduction in the fee to register an LPA from £150 to £120, and to the introduction of a more flexible supervision regime.

The second consultation—the Government response to which was printed today and the resultant SI laid in Parliament—was on more technical but still important matters, which impact on the quality of service that we offer to customers. We intend to report back to Parliament, as promised, by way of a memorandum to the Justice Select Committee. This will be after the Summer Recess. It will take into account all that we have learnt so far and will lay out what research is still going on.

As has been said in the debate, a major part of the review of the Act has been to look at the way in which the new Court of Protection has been working. Key to this has been the establishment of an ad hoc committee to undertake a review of the Court of Protection Rules 2007. The committee is made up of professional and non-professional court users, judiciary and officials. It is chaired by two High Court judges. This committee will look at key areas that have been referred to, such as the continued improving and simplifying of court forms, quicker and simpler procedures to deal with straightforward property and affairs applications, and improving the guidance in practice directions. The committee expects to produce initial recommendations for the president this summer.

Not surprisingly, the Department of Health’s main focus has been on implementation rather than review, as the Act has required changes in policies for many people, as it affects the work of approximately 3 million staff. Such changes take time to embed in an organisation the size of the National Health Service, and the department has an ongoing programme of implementation for the Act. As part of the review, the Department of Health commissioned a large piece of research on the successes and difficulties of making best-interest decisions in both the NHS and in the field of social care. It has also commissioned a set of audit tools that will enable organisations to carry out their own reviews of the Act.

We have heard mention of the new independent mental capacity advocates. They are trained professionals who support and represent people who lack capacity and who have no one else to speak for them when decisions need to be taken about serious medical treatment and long-term residential care. This is an important step forward in ensuring that the best interest of the patient is always taken into account.

As part of its implementation programme, the department has developed training materials for the Act that were widely distributed, and has also provided funding for others, such as the Royal College of Psychiatrists, the Intensive Care Society and the Alzheimer’s Society, to develop their own guidance. The department has maintained a national implementation manager and a team of regional implementation leads to support the embedding of the Act in practice.

During implementation, it became clear that not all health and social care practice was as good as it might have been prior to the Act’s introduction. There is a greater than anticipated need to work with care homes, hospitals, local authorities, primary care trusts and other providers of treatment and care, as well as a range of other bodies such as those responsible for training and development, to ensure best practice.

I turn briefly to some of the many questions that were posed. The cost of registering an LPA was referred to by the noble Baronesses, Lady Finlay and Lady Barker. As I said, the OPG has reduced the cost of registering to £120—the same as it costs to register an EPA. I am told that the OPG is looking at other ways in which it may reduce costs without impacting on the speed and quality of the service provided. We asked for views on this in the recent consultation.

I remind the House that the Legal Services Commission can fund legal help in relation to the making of lasting powers of attorney in advance decisions when the client is aged 70 or over, or is a disabled person within the meaning of Section 1 of the Disability Discrimination Act. Legal help is subject to the general means test and the merits test is that of sufficient benefit. The length and complexity of the form was referred to by the noble Lord Henley, and the noble Baroness, Lady Finlay. It is longer than the old one. It has been reduced in size since it was first introduced. In part, its length is to enable it to be filled in by ordinary people without the need to seek legal advice. It contains some additional safeguards that the old enduring power of attorney form did not. It requires an independent person to certify that the person making the LPA has the capacity to do so and is not doing it under duress. I am sure that noble Lords will agree that to reduce it still further could run the risk of weakening some of these measures, but we are interested in feedback.

The noble Baroness, Lady Finlay, talked about complaints. Between October 2007 and April 2009 there were 3,000 complaints to the OPG and the court. That figure was widely publicised. The majority were in relation to the speed of processing of lasting powers of attorney which were the result, as the noble Baroness, Lady Barker, implied, of a higher than anticipated workload in the first year of operations. The OPG has put in place measures to deal with that and between April and September 2009—six months—there were 899 complaints. The OPG annual report stated that there had been considerable improvement in the registration process and that that was expected to be maintained and built on in the future.

On the issue that LPA fees are too high and too complex, as I said, the forms have been simplified. We continue to look at ways to make the process simpler. Timetables have been shortened and seem to take around 11 weeks now as opposed to up to six months when the Act first came into force. Six weeks is of course the statutory waiting period for objections.

There were comments from all noble Lords about deprivation of liberty safeguards—DOLS. The NHS Information Centre on social care published activity data last week for the first nine months of last year. The Department of Health is drafting a briefing and commentary on this data to be published on its website in early April. The department has published guidance on its website for the first three significant case law judgments and the Care Quality Commission has to publish an annual report on DOLS under the Act, which will include best practice guidance. The Mental Health Alliance will also publish a report on its view of progress, which will be based on feedback from alliance members. It is understood that the report confirms that there have been some improvements in practice and that there are major causes for concern in the low level of applications. There are significant variations in levels of activity between supervising bodies, lack of understanding of the Act, which was referred to by all noble Lords, and some lack of adherence to legal requirements. The Department of Health shares a number of these concerns.

The noble Baroness, Lady Barker, asked about deprivation of liberty safeguards. We hope that they provide a framework for improving the deprivation of liberty of people who lack capacity. They contain detailed requirements about when and how deprivation of liberty may be authorised. Delays have been referred to. As I said, the workload of the court exceeded expected levels. Now nominated judges from the regional courts can be used to assist with casework within the Court of Protection, which came under Her Majesty’s Courts Service from April last year and which allows more flexibility in terms of judging.

There has been a lot of training and awareness raising on the requirements of the Health and Social Care Act. There are good examples of policies and procedures throughout England and many examples of best practice. I agree with the noble Baroness, Lady Finlay, that not all health and social care practice was best practice prior to the Act’s introduction, so there has been a greater need than was anticipated to work with the institutions to which I have referred. As regards the point about the “over-18 box”, without going into detail I can say to the noble Baroness that we do not believe this will happen again.

The noble Lord, Lord Rix, has a well-known interest in those with learning difficulties. The Act is clear that there should never be an assumption that a person lacks capacity to make a decision. This applies to those with learning difficulties as much as to everyone else. The starting assumption has to be that a person has the capacity to make a decision unless it can be established that they do not. All possible steps must be taken to try to help people make a decision for themselves. An important point must be made clear—that a person’s capacity refers specifically to their capacity to make a particular decision at the time it needs to be made. It cannot be based just on age, appearance, assumptions or one aspect of their behaviour. The noble Lord informed us about the “Involve Me” project. We are very interested to hear of the work Mencap has done with this project. We would be interested to hear more about the remits of this work and to consider what wider lessons can be learnt.

The noble Lord, Lord Rix, was concerned about the working of the Act in practice. Two pieces of research are under way from the Office of the Public Guardian and the Department of Health, as I think I mentioned. Both are looking at the quality of best interest decision-making. The noble Baroness, Lady Barker, and the noble Lord, Lord Henley, referred to financial institutions. The noble Baroness is absolutely right to refer to the awareness of LPAs among banks and financial institutions. I am told that the public guardian liaises regularly with the British Banking Association, and where individual concerns are brought to his attention will write to banks informing them of their duties. Over the coming year, his office will consider what further engagement may be needed in this area.

As regards the number of people subject to the DOLs legislation, between April and December last year, more than 5,300 people had been the subject of completed assessments. Of these, 43 per cent had resulted in authorisations, two-thirds for people aged over 65; 50 per cent of those assessed have dementia. There is no over-representation of any ethnic minority group in this field.

We agree with the noble Baroness, Lady Barker, that the two codes of practice are integral to the ways in which the Act is interpreted. Feedback about them is positive so far and no major issues have been raised. However, I hope she will be pleased to hear that we intend to consider the results of research commissioned by my department and the Department of Health in this area and consider more widely how well the code is working in practice and what changes may be necessary.

I know that I have gone over my time, but I shall finish. The noble Lord, Lord Henley, asked whether it is possible to say how many EPAs are out there. They can be used while the person lacks capacity without being registered, and therefore without us knowing about them. That is why it was decided that all LPAs must be registered in order to be used. The noble Lord also asked about inconsistencies in the understanding of the DOL safeguards. We acknowledge that at this early stage in implementation there are inconsistencies in understanding and practice.

All noble Lords asked about what the Government are doing to raise awareness, which is perhaps the crucial question about the Mental Capacity Act and the deprivation of liberty safeguards. The Department of Health and the Social Care Institute for Excellence have recently delivered seven regional events to look at best practice on the Act. They were attended by more than 1,000 health and social care staff. The Social Care Institute for Excellence has produced four TV films about mental capacity and more are planned for this year. The department has an ongoing national and regional implementation programme and continues to work through 152 locally established MCA implementation networks to disseminate the Act’s requirements.

Perhaps I can sum up by saying so far, so good. I know that many noble Lords and other people outside this House will be looking carefully to see how the Act continues to work and will make their criticisms and comments about it in due course. That is just the way it should be. I once again thank the noble Baroness, Lady Finlay.

Committee adjourned at 7.26 pm.