Mental Capacity (Amendment) Bill [HL]

Written evidence submitted by Mike Stone (MCAB08)

1 Introduction and personal details

I am responding on the basis of the webpage at:

https://www.parliament.uk/business/news/2018/december/have-your-say-on-the-mental-capacity-amendment-bill/

and in answer to its initial question:

Do you have relevant expertise and experience or a special interest in the Mental Capacity (Amendment) [Lords] Bill, which is currently passing through Parliament?

If so, you can submit your views in writing to the House of Commons Public Bill Committee which is going to consider this Bill.

I have ‘a special interest in’ the Mental Capacity Act, and therefore by extension in the current Bill.

I write from the family-carer perspective, usually about the sections of the MCA which describe ‘informed consent’ and ‘best interests’ (so sections 1 – 6, and 24 - 26 in essence) and I usually try to avoid DoLS. However, I did send some submissions to the Law Commission’s consultation, and I have been ‘loosely following’ descriptions of the Bill on Twitter, etc.

2 Suggestion for an Alternative Title

The SCIE hosted a discussion of the Bill a few months ago, and towards the end of the discussion two of the speakers, Baroness Ilora Finlay and Rachel Griffiths, both expressed reservations about the presence of the word ‘safeguards’. I will not go through the reservations, but Baroness Finlay is in The Lord’s and would, I feel sure, be willing to elaborate. I share the reservations over the presence of that word ‘safeguards’, and I would suggest an alternative title for the DoLS replacement of:

Protection of Liberty Arrangements

3 The Role of Health and Welfare Attorneys

I sent an e-mail to Lord O’Shaughnessy on 21 st July. I will append the text of my e-mail, and my main point is that the ‘authority of Welfare Attorneys over best-interests decision-making’ should be re-inserted into the Bill/Act, if the assertions of Lord O’Shaughnessy are to be effective in practice. In brief, this amounts to the introduction of the Law Commission’s recommendations:

The responsible body may not authorise arrangements which provide for the cared-for person to reside in, or to receive care or treatment at, a particular place if there is a valid decision of-

(a) a donee of a lasting power of attorney granted by the cared-for person, or
(b) a deputy appointed for the cared-for person by the court, that the cared-for person should not reside in, or (as the case may be) receive care or treatment at, that place.  (clause 15 of the Law Commission’s draft Schedule AA1)

Respectfully yours,

Mike Stone

My e-mail to Lord O’Shaughnessy on 21 st July :

Dear Lord O’Shaughnessy,

 

Although I made some submissions to the Law Commission MCA/ DoLS Consultation, I had not been paying any attention to the Bill until I came across an online piece which informed me that the Bill omits these suggestions from the LC:

 

The responsible body may not authorise arrangements which provide for the cared-for person to reside in, or to receive care or treatment at, a particular place if there is a valid decision of-

(a) a donee of a lasting power of attorney granted by the cared-for person, or
(b) a deputy appointed for the cared-for person by the court, that the cared-for person should not reside in, or (as the case may be) receive care or treatment at, that place.  (clause 15 of the Law Commission’s draft Schedule AA1)

 Apparently when asked about that, you said:

 …I will finish on the power of attorney and the role of families. They still have primacy under the Mental Capacity Act, the principles underpinning which still apply. It will not be possible to deprive a person of liberty when the attorney acting on their behalf has stated that their best interests are served otherwise. I want to make that clear but it is something that we will need to explore and explain better. Attorneys will be part of the group that is to be consulted, and the Bill creates an explicit requirement for further consultation with families. Family members can also act as appropriate persons, so I think there is a greater strengthening of the role of those acting on behalf of a person deprived of their liberty in the process of scrutinising that and making sure that it is done appropriately.

 I am an 'annoyed former family-carer' and usually I don't 'do DoLS ' - I 'do MCA Best Interests'. And your phrasing is not a clear and accurate description of 'MCA best interests'. 

'welfare attorneys and families' do NOT 'have primacy under the MCA - the MCA gives AUTHORITY OVER best-interests decision-making to attorneys and court deputies {6(6) and 6(7)} and 'the primacy' is in the obligation of any best-interests decision-maker to defensibly satisfy MCA 4(9) {which in fact provides a legal defence, as opposed to imparting the legal authority of 6(6)}.

The use of your phrase 'Attorneys will be part of the group that is to be consulted' doesn't fit with the authority of attorneys/deputies as given via MCA 6(6) over best-interests decision-making:  if something falls within the best-interests framework, and under the authority of an attorney or deputy, it is clear from MCA section 4 that the attorney or deputy is the person who does 'the consulting' .

 So, in my opinion - which you may or not believe to be worth considering - if you intend that welfare attorneys who were chosen by the now- incapacitous person to make best-interests decisions are still to be able to prevent ' DoLS ', then you must INCLUDE that section which the draft Bill has omitted.

Otherwise even more 'conceptual chaos' is likely to result, when people apply the new laws - and I'm having enough trouble with things which seem obvious in the MCA anyway, such as what I pointed out in the three linked-tweets at:

https://twitter.com/MikeStone2_EoL/status/906073527236907009

Regards, Mike Stone

December 2018

 

Prepared 15th January 2019