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Friday, 7 June 2013

Your statistical guide to the Mental Capacity Act 2005

My lovely statistical data from my PhD thesis, which I lovingly gathered and harvested from reports and under the Freedom of Information Act 2000, will not see the light of day in any formal publication any time soon.  Yet, I am contacted very frequently by lawyers, researchers and campaigners asking where they can find data on this, that or the other.  So I decided to turn these data into a statistical guide for your use.  Enjoy.

About the Statistical Guide to the Mental Capacity Act 2005

The Mental Capacity Act 2005 (MCA) affects the personal and workings lives of millions of people in England and Wales. The deprivation of liberty safeguards and the Court of Protection, both established by the MCA, are frequently in the news. There are many interesting developments afoot regarding the Act – not least the forthcoming hearing of two key deprivation of liberty safeguards cases by the Supreme Court (Cheshire and P & Q) and the newly announced House of Lords ad hoc committee on the MCA. The MCA is also of growing interest at an international level as Article 12 of the UN Convention on the Rights of Persons with Disabilities (CRPD) – the right to equal recognition before the law – refocuses critical attention on mechanisms which allow a person’s own decisions to be displaced by another’s on grounds of ‘incapacity’.

My doctoral research focused on the MCA in relation to adult social care, and I amassed a large amount of statistical data on the Act, on the deprivation of liberty safeguards and on the Court of protection – from official sources, by using the Freedom of Information Act 2000 (FOIA) or through the generosity of those working in the court service. In this document I have tried to bring together all the data I have, so that others can use it to inform any teaching, research, campaigning, litigation, journalism or policy work in this area. Please feel free to use the data, tables and figures contained here for these purposes, although please be careful to appropriately attribute them (both to myself, and the original source of the data). I would like to take this opportunity to acknowledge and thank the FOIA officers and their colleagues in the Ministry of Justice, the Department of Health, the Office of the Public Guardian, the Crown Prosecution Service, the Court of Protection and the local authorities I contacted, for all their help and hard work.

The overall picture painted by these data is of an Act whose primary mechanisms are informal – the vast majority of decisions are made under the general defence, and so are not picked up by data on the deprivation of liberty safeguards or the Court of Protection. The statistics show that referrals to Independent Mental Capacity Advocates (IMCA) have been lower than expected, and the number of complaints and litigation resulting from IMCA referrals is concerningly low, suggesting they are only infrequently challenging decision makers or assisting P to do so. Use of the deprivation of liberty safeguards has been underwhelming and extremely variable – it appears there is a postcode lottery in the Article 5 protections offered by the safeguards, both in terms of when they are applied, and how effectively people’s rights to advocacy and challenge are upheld. Despite fairly limited, but growing, use of the Court of Protection under the MCA for welfare decisions and the deprivation of liberty safeguards, it is clear from the comments of the judiciary and the Official Solicitor that these cases are causing a significant strain on resources.

The document is divided into three sections: data on the Mental Capacity Act, the deprivation of liberty safeguards and the Court of Protection. Very limited data is available on the use of the ‘general defence’ under the MCA. I have collated some data on the use of welfare benefit appointeeships, Lasting Powers of Attorney, deputyships, Independent Mental Capacity Advocates and prosecutions under s44 MCA. Using the official data on the deprivation of liberty safeguards and data gathered under the FOIA, I have produced tables and figures showing – for the period 2009-2012 –  the number of applications over time, variation in application rates across local authorities (including an appendix showing each local authority’s per capita application rate using population data), some data on third party referrals, Part 8 reviews and applications to the Court of Protection under s21A MCA and s16 MCA. An additional appendix shows the startling variation between local authorities’ use of s39D IMCAs under the deprivation of liberty safeguards. I have also drawn from data published in the two Court of Protection annual reports, the Official Solicitor’s annual reports and a small amount gathered under the FOIA to produce tables and figures on welfare proceedings in the Court. I reproduce some data on applications for permission, which paint a picture of who is using the welfare jurisdiction of the Court of Protection, a figure shows the growing workload of the Official Solicitor and I present some data on Court of Protection visitors.

I am afraid these data have not been peer reviewed, but if you spot any errors I would be grateful if you could bring them to my attention. If there are any data not contained here that you would find useful, please do let me know – it may be that I already hold it. I am afraid that these data focus more on the welfare side of the Mental Capacity Act, as that is what my doctoral research has focused on.

7 comments:

  1. This is really helpful Lucy, I can't imagine how long all these figures must have taken to hunt down and get sorted out. Many thanks for making it available.

    Steven

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  2. Hi Lucy
    I found your site via contact with Jill Manthorpe . I chair a safeguarding board and do SCRs and investigate complaints. I am doing a complex complaint investigation at the moment that relates to a 'failed' prosecution of a family carer under S44. Your stats are very useful but wonder if you have been able to get a breakdown of paid carer/family carer prosecutions or cn point me in the direction of that information? Most I know about involve paid carers.
    Regards
    Shirley Williams

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    1. Hi Shirley,

      Thanks for your email. I'm afraid I don't have a breakdown of the subject to s44 prosecutions, and to be honest I would be very surprised if the CPS did - the data they hold seems to be pretty minimal (they don't even collect data on whether or not the prosecution was successful). You could try and FOI request it from them, but I wouldn't hold your breath!

      What I would say is that many s44 prosecutions which result in a trial (not all do) are reported in local papers, and it might be worth searching Lexis-Nexis or even google news for some examples. I have mostly only come across prosecutions of paid carers, no family carers spring to mind I'm afraid... The other danger with relying on news outlets, is that they often get the law wrong (confusing the MHA and MCA offences).

      Sorry I can't be more helpful! You could try contacting local prosecutors perhaps for some informal qualitative feedback?

      Best wishes,
      Lucy

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  3. Dear Lucy

    A great piece of work.
    Having been wrongly held by the COP for some time I know full well how much damage it can do.
    It's hard to quantify this damage but as far as my case is concerned it is unacceptable.
    I have been cleared of lacking mental capacity but I still await the return of money taken from me.

    This is just another point wrong with the system, there are far too many to list and that is just from my case.
    Treating a large and diverse group of people the same and labelling them all "P" was always going to cause problems.
    I am to be treated in the same way as someone in a coma and that going to work? I think not.
    All in all the COP was a bad idea very badly executed as far as I can tell.

    I think your work points this out very nicely.

    All the best,

    Neil Barker contact:e-mail 100100 Åt neebert.net

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  4. I'm an executor with a mentally ill sibling who is also a beneficiary. I am about to apply to the Court of Protection to allow me to wind up the estate after 2 years of futile attempts to negotiate with someone incapable of a rational response. Looking at your statistics for (sibling applicants and mental illness) it would appear that my chances of success are very low. Am I looking at the right figures?

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    1. Hi there, this sounds like a property and affairs issue, and the statistics I've given only apply to personal welfare decisions. I have to say I'm not entirely clear what the procedure would be here... probably worth consulting a solicitor.

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  5. Thanks for your reassurance. I saw the barrister yesterday, so everything seems to be in hand.

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