Mental Capacity (Amendment) Bill [HL]

Written evidence submitted by Roger Hargreaves (MCAB04)

Summary

· The Law Commission’s recommendations for change were the result of extensive consultations over three years and were generally welcomed. Nevertheless, although there were justified protests about the government’s abrupt departure from some of them, many bodies making representations have also sought to reopen earlier debates

· The changes made in the Lords to the "care home arrangements" are a step in the right direction, but in the absence of either incentives or sanctions it is unclear why care home managers would choose to fulfil the role the government envisages for them

· The provisions in the Law Commission’s Draft Bill to guarantee the legal status and independence of the Approved Mental Capacity Professional, omitted from this Bill, are vital and should be reinstated

· The issues surrounding the interface between the Mental Health Act and the Mental Capacity Act are too complex to be resolved within the limited Parliamentary time now available

· There is a danger that an attempt to clarify the meaning of deprivation of liberty on the face of the Bill may have the opposite effect in practice

· The government’s position on dealing with the backlog of Deprivation of Liberty Safeguards applications is utterly unrealistic, and likely to result in the new scheme being overwhelmed from the outset, and urgent consideration should be given to introducing paper-only assessments within the present scheme

Curriculum vitae

1. I spent 28 years in local authorities as a social worker or manager in mental health and learning disability services; was deputy lead for the British Association of Social Workers (BASW) on the review of the 1959 Mental Health Act which led to the 1983 Act; and subsequently served on the Mental Health Act Commission and on the Mental Health Strategy Group of the Association of Directors of Social Services. From 1999-2009 I was an independent practitioner specialising in reports for courts and tribunals and investigations for care regulators, and I served on 8 independent inquiries into serious incidents in mental health services.

2. From 2000-09 I was national lead for BASW on the review of the 1983 Act which led to the 2007 revision, and which included the Deprivation of Liberty Safeguards (DoLS), and represented BASW in the consultations on DoLS by the Department of Health. From 2009-14 I was DoLS lead for the Mental Health Alliance and author of its reports on DoLS published in 2010 and 2012, and its evidence to the House of Lords in 2014 which included an outline replacement scheme anticipating the general approach later taken by the Law Commission (LC).

3. From 2009-12 I was an independent trainer, operating over the whole of England and Wales, specialising in the procedural aspects of DoLS. Since retirement I have maintained an active interest, corresponding with the LC in the course of its review and maintaining contact via social media with practitioners, to whom my in-depth knowledge of this extraordinarily (and unnecessarily) complex legislation and its interactions with the Mental Health Act is still at times useful. In 2015 I gave advice to the Department of Health and the Association of Directors of Adult Social Services about the feasibility of paper-only assessments as a means of clearing the backlog. I submitted evidence to the JCHR in February 2018 and during the progress of the current Bill I have drafted and circulated a number of briefing notes.

Evidence

4. Since the government introduced, just before the summer break, without warning or meaningful prior consultation, a hurriedly-drafted Bill which, contrary to its claims, differed significantly in several respects from the scheme set out by the LC in March 2017 and was accompanied by a totally unrealistic Impact Assessment, the strong negative reaction was unsurprising. However, with the amendments made in the Lords, and the others promised, it is now much closer to the LC’s proposals, but perhaps due to passage of time, many of the bodies making representations appear to have lost sight of them and the reasoning behind them and, rather than simply arguing that they should be reinstated, are attempting to reopen debate on recommendations which had been arrived at following extensive consultation over a three-year period, such as the provision that hospitals, both NHS and private, should act as their own "responsible bodies."

5. Some bodies making representations have also failed to take account of the fact that the Liberty Protection Safeguards (LPS) are structured in a very different way to the current DoLS. It is essential that responsible bodies should, before making an authorisation, ensure that the proposed arrangements are lawful in that they are not opposed by a deputy or donee of a lasting power of attorney with the authority to make decisions about them; and it is also essential that they can attach to an authorisation whatever conditions they think necessary. For both these things, the complex and rigid structure of DoLS necessitates statutory procedures, but these are not necessary under the LPS and the issues can be adequately dealt with in the Code of Practice, and the LC therefore did quite rightly not include specific provision in its Draft Bill.

6. By the same token, bodies calling for "best interests" to be included in the Bill as a condition for authorisation have overlooked the fact that this is already inherent, as Section 1(5) of the parent Mental Capacity Act requires that "any decision made under this Act must be made in the person’s best interests." Again, a "best interests requirement" and assessment is necessary in DoLS due to its structure, but in this Bill it is sufficient (as the LC pointed out) just to include the conditions in Article 5 of the ECHR for a lawful deprivation of liberty, which do not appear in the main Act.

7. In addition, the publication of the Wessely review of the Mental Health Act (MHA), which proposes tightening of safeguards within that Act, is leading to inappropriate comparisons. The main purpose of the MHA is to regulate forced removal from home, followed by detention and compulsory treatment within living arrangements which are abnormal and often highly restrictive, stressful and oppressive; the LPS, on the other hand, are designed to regulate the care of much greater numbers of people who will, for the most part, be living under arrangements which are as normal and unrestrictive as is possible given the nature of their disabilities and with which they and their relatives are at least broadly content.

8. Given this, it is entirely rational to seek to strengthen safeguards under the MHA whilst at the same time making those under LPS more nuanced than under DoLS and focusing them on the relatively small number of cases where there is an objection to the arrangements, or evidence to suggest that they may be outside the norm or that less restrictive alternatives may be feasible. It is, for instance, reasonable, subject to regular reviews, for authorisations to be renewed for periods of three years where the arrangements appear to be long-term and satisfactory and there is little likelihood of significant change. However, this has implications for the extent to which, as proposed by Wessely, LPS could properly be substituted for the MHA in respect of hospital patients who are not objecting.

9. Some bodies making representations have also lost sight of the resource issues which the LC balanced against the level of safeguards. Some demands, such as that of the Law Society that Approved Mental Capacity Professionals (AMCPs) should be "made available in most cases", would result in a scheme almost as resource-intensive as DoLS, and the perpetuation of huge backlogs and a continuing unacceptable drain of scarce professional time away from other priority tasks. A "one size fits all" approach to safeguards, as under DoLS, would be practicable only by adopting a tight statutory definition of deprivation of liberty, but this would result in large numbers of people receiving no safeguards at all.

10. It is also not realistic to demand that the scheme be entirely free of possible conflicts of interest. The basis of the LC’s proposals was that when care or treatment arrangements are being made which will give rise to a deprivation of liberty, the decision as to whether that deprivation will be lawful should as far as possible be made concurrently and not after the event, and this inevitably means that care commissioners and providers must be involved in that decision. The government’s original plans to devolve assessments to care home managers went too far in that direction and were rightly opposed, and similar issues have been highlighted in respect of private hospitals, but potential conflicts could be avoided altogether only by outsourcing operation of the scheme entirely to an independent statutory body, which would not only be completely impractical but would defeat the LC’s intention.

11. In particular it is not practicable, as the Law Society is proposing, to ensure that "any task or role care home managers undertake should be completely conflict free." Where the resident is one of the approximately 45% who are self-funded and is being or has been placed in the home without the involvement of the responsible body, its initial source of information about them will be the home itself, and if, as the Law Society is suggesting, the active participation of the home manager in the assessment or consultation process is completely precluded, requiring the responsible body to send in assessors in every case, we will again be back to where we are now in terms of backlogs and misuse of scarce resources.

12. Insofar as they will allow the responsible bodies to determine what roles care home managers should or should not undertake, the amendments made by the Lords to the "care home arrangements" are therefore a step in the right direction. However, although the government appears to think that authorisation on the basis of a statement from the care home manager (Schedule AA1 Para 16) will still be the norm rather than the exception, it is difficult to see what incentives or sanctions there will be to persuade a manager pressed both for time and for funds to go down this route rather than simply to notify the responsible body of a possible deprivation of liberty and leave it to do all the work under Para 15.

13. A high proportion of representations, and of amendments proposed in the Lords, have focussed on the need for effective avenues for representation and appeal, and comparisons have been made between the 1% rate of appeals against DoLS and the 45% rate of appeals against detention under the MHA. However, I pointed out in my evidence to the JCHR that "the Court of Protection (CoP) process is formidable and protracted, and in practice, obtaining redress depends on there being a relative or advocate able and willing to pursue it. For most people, the involvement of an independent professional with the power to achieve a speedy resolution would be more valuable than a largely theoretical right of appeal to a court."

14. In practice that means the Approved Mental Capacity Professional (AMCP), who will have the power either to block an authorisation or to insist on changes to the care arrangements. Many representations have recognised the potential value of this role and have recommended that it be extended to more situations than envisaged in the original Bill – perhaps more than are realistic ( see para 9 above.) As the Bill stands, however, with the amendments already promised by the government, AMCPs will be involved in every case where there is an objection by the person themselves or someone close to them, and therefore all the cases which might potentially be appealed to the CoP, and the government seems to be relying on them to "divert" cases away from the court and reduce the 1% rate to just 0.5%.

15. However, that depends on AMCPs having sufficient legal status and demonstrable independence to be regarded by the courts as autonomous quasi-legal bodies who are competent to resolve disputes in the first instance. If that is not the case, and the courts come to regard the LPS as they do DoLS, as essentially an administrative rather than a quasi-judicial scheme, then existing guidance will continue to apply that all cases in dispute must be referred direct to the court, rendering the AMCP largely redundant. This is most likely to arise where the responsible body is itself the commissioner or provider of the care, which could include not just hospitals but also local authorities and CCGs.

16. It seems to be very widely assumed that the provision that AMCPs must "not be involved in the day-to-day care of, or in providing any treatment to...." the person is sufficient to guarantee the necessary status, and there has been a general failure to grasp the very limited scope of that exclusion, which would still allow them to be involved in the care of the person provided that that was not "day-to-day." An individual who initiated or had been instrumental in the decision to place the person in circumstances amounting to deprivation of liberty could therefore act as AMCP, making the final decision to authorise that deprivation. By contrast, the AMCP’s equivalent under DoLS, the Best-Interests Assessor (BIA) must not be "involved in the care, or making decisions about the care, of" the person, and not be employed by the supervisory body if it is also the care provider.

17. This mattered much less in the LC’s Draft Bill, as it placed a duty on local authorities to approve AMCPs to act "on its behalf" and to "appoint an individual to manage their conduct and performance" who must "report to the director of adult social services." The combined effect of this would have been to make AMCPs a purely local authority service and to place them under separate dedicated management at arm’s length from the commissioning and care provider arms of the authority. All this, however, is absent from the government’s Bill, which simply requires local authorities to "make arrangements for persons to be approved", and although the Secretary of State appeared to deny it during Second Reading, it is difficult to avoid the conclusion that the intention is to allow other responsible bodies, including private hospitals, to employ or hire their own AMCPs. The government may say that it will all be dealt with in the Code, but a Code cannot limit the scope allowed by the wording of the statute nor confer autonomous quasi-judicial status, and the LC’s proposals are the absolute minimum necessary to achieve this.

18. Although the text of the Bill does not support it, the Minister in the Lords appeared to believe that it would be possible for a responsible body to give an authorisation even where the AMCP had determined that the authorisation conditions were not met, and some proposers of amendments appeared to assume that there could be "ongoing disputes" between AMCPs and responsible bodies. It needs to be made absolutely clear that where the AMCP has made a final determination, that authorisation process ends and any disagreements can be resolved only via the court; if there is any suggestion that AMCPs could be overruled or circumvented by a responsible body with a vested interest, it will be fatal to the courts’ perception of them as an autonomous legal entity. Although there would be issues as to who would meet their costs, it may be desirable to give them the power to refer cases to the CoP rather than just to advise the responsible body to do so.

19. The interface between the MHA and the MCA/DoLS is one of the most troublesome aspects of the present scheme, Schedule 1A, which deals with it, being virtually incomprehensible even to experts, although that to some extent just reflects the difficulty of marrying two pieces of legislation based on different principles. Now that Wessely has reported, the government is under pressure to resolve this problem during the passage of this Bill, and it was cited in the Opposition amendment at Second Reading.

20. However, I think that the issues are too complex to be resolved within the limited time now available. Any solution other than the one proposed by the LC (which Wessely has rejected) would require possibly several amendments to the MHA, and these would have wider implications including implications for public safety. The solution proposed by Wessely would also not bring about the envisaged neat separation between the two statutes, even if the Lords amendment, restricting LPS to "prevention of harm to the cared-for person" were to be reversed (and the government has said that it will not seek to do this.)

21. The only realistic way forward, therefore, is to retain the status quo for the time being but to give priority to the issue in consultations about revision of the MHA. The scheme in the Bill is not, though, practicable in its present form as it lacks satisfactory mechanisms to replace the "eligibility assessment" in DoLS, in the absence of which there will be even more intractable interprofessional disputes than at present.

22. The government is also under pressure to agree to a statutory definition of deprivation of liberty, and appears sympathetic. However, there is a danger that a well-meaning attempt to "clarify" the issue could have the opposite effect in practice. Although the "acid test" may not accord with the general public’s (or many care providers’) understanding of the term, it has the merit of being simple and largely objective and therefore relatively easy to apply on the ground, and BIAs, part of whose role is to apply it, appear to have little difficulty in doing so. It may well be practicable to exclude discrete classes of people, such as those living with and cared for by family or friends, from the scope of the LPS if not from Article 5, but any attempt to "clarify" the test in general, especially with a view to substantially reducing the number of people falling within it, is likely to introduce additional dimensions and subjective elements of the kind which were stripped out by the Supreme Court in 2014, and we could find ourselves back in the situation which prevailed up to then, where it was a major preoccupation of BIAs and a nightmare for those training them, and the differences in interpretation resulted in huge variations in application and authorisation rates, with some local authorities authorising hundreds of cases a year, and other comparable authorities just three or four. If the need is simply to clarify the application of the acid test to particular circumstances, this would be much better done via examples in the Code.

23. Finally, the transitional arrangements. The Opposition amendment accused the government of "failing to provide measures to reduce the substantial backlog of DoLS assessments", but it appears to believe that introduction of the LPS will in itself be sufficient to achieve this within a reasonable time, with outstanding DoLS applications being simply transferred across to the new system. This is utterly unrealistic. First of all, in the run-up to implementation, throughput of cases is bound to reduce substantially, as time is diverted to setting up new systems and training or retraining, and staff move to new positions. To implement the LPS, knowledge and skills currently the preserve of the BIAs and their immediate managers will need to be shared with a wider workforce, which task is bound to require many BIAs to move into training roles as the existing trainers will not have sufficient capacity. By far the biggest element of this, if the role of care home managers remains as the government envisages, will be training 25,000 of them plus their deputies. In addition, many BIAs are currently self-employed, and as the Impact Assessment assumes fewer AMCPs than BIAs they will inevitably begin to look for alternative work (of which there is no shortage) well in advance of the changeover.

24. After the changeover, as with any other new scheme of this nature, the arrangements will take time to "bed in", during which time throughput will be well below the long-term forecast, and the time savings from the option of three-yearly renewals will not begin to take effect until the second year. The new system will also need to begin to absorb the "iceberg" of cases currently outside the scope of DoLS, which ought to be taken to the CoP but in practice rarely are. Again, a major issue will be the part played by the care home managers – if they are unable to acquire or arrange assessments to the necessary standard, the local authorities and CCGs will be forced to deploy their own staff, undermining the resource assumptions behind the scheme.

25 It is inevitable, therefore, that unless pre-emptive action is taken the backlogs will grow further before they begin to decline, and there is a high risk that the new scheme will be overwhelmed by them from the outset. The existing DoLS scheme does not, however, preclude the use of paper-only assessments, and although it would involve some compromise to current assessment standards, urgent consideration should be given to introducing these, at least in cases where there is no objection or other particular ground for face-to-face assessment, as a means of reducing or hopefully eliminating the backlogs before the new arrangements come into force.

December 2018

 

Prepared 15th January 2019