Mental Capacity (Amendment) Bill [HL]

Written evidence submitted by Sarah Paxton (MCAB13)

The House of Commons Public Bill Committee

Mental Capacity Act (amendment) Bill- Liberty Protection Safeguards

I am writing in a personal capacity to request that you take into consideration my views and comments about the proposed Liberty Protection Safeguards. I am a registered Social Worker, an Approved Mental Health Professional (AMHP) and a DoLs signatory. I am employed as a senior manager for a local authority in SE Wales and have a particular interest in safeguarding the rights of vulnerable people.

Since the Cheshire West judgement it is true that the current system under DoLs is not fit for purpose and I was hopeful that the law commission’s recommendations would result in improved safeguards for people deprived of their liberty regardless of the setting. However I am concerned that the MCA amendment bill before parliament could result in the worst of all worlds if there are not significant amendments made.

Firstly I want the committee to be aware that the foundations for LPS in whatever form it eventually takes are particularly weak. The Mental Capacity Act although some 12 years old is poorly understood , particularly in hospitals and care homes and as a consequence leads to P’s voice, wishes and feelings being ignored or given little weight. The select committee recognised this and if a new scheme is to have MCA as its foundation then the government needs to focus on embedding MCA so that everyone understands the values and principles and we have a secure foundation on which to build LPS.

Wishes and Feelings – P at the centre

The Bill should be amended to ensure that P has the right to be consulted by creating a separate assessment of their views, wishes and feelings and where there is any suggestion of an objection to the proposed residence, care and support an independent advocate must be appointed immediately in order to progress.

I worked with a 95 year old woman with Dementia who lived in her own home in the community with minimal support from friends and the council. She had an infection and was admitted to hospital. Throughout her stay she persistently stated that she wanted to return to her own home and was accepting of the need for additional care and support. She was assessed as lacking capacity to determine her residence, care and support with signs of cognitive decline. Her son had LPA for finance and personal welfare and was determined that his mother would not return home and that he wanted her to go to a care home. It seemed to the LA that he gave most weight to his own wishes and feelings above those of his mother despite knowing what it was she wanted and how unhappy she was saying she would be if she went to a care home. He was supported in this view by the ward medical and nursing staff despite them knowing P’s wishes and feelings, this was experienced as a risk averse, patriarchal view. The local authority appointed an advocate and held a best interest meeting, the LA gave more weight to P’s wishes and feelings, her happiness and emotional wellbeing and at very least she should be offered the opportunity to return to her own home with a package of care and support on a trial basis, acknowledging this was not without risk but those risks were known and manageable. Her son was adamant that she should not return home on the basis that the risks were too great, albeit that there was no evidence to support the level of risk he was claiming and he gave no weight to her emotional wellbeing or wishes and feelings. He with the support of the hospital care team who had a poor understanding of MCA discharged her from hospital to a care home and placed her property up for sale, as her attorney he was able to do this. The local authority made an urgent application to the Court of protection to prevent the sale of the property and to seek a welfare decision as to her best interest. The outcome of several hearings in the CoP was it was determined it was in her best interest to return home with a package of care and she was able to be supported in the community for a further 9 months. This illustrate how important it is to have a separate assessment of P’s wishes and feelings. This case is fairly typical and had the LA not taken immediate action could have resulted in her home being sold with no alternative option but to remain in a residential care setting against her wishes.

The role of the AMCP in securing the P’s best interest is vital but placing a duty on LA’s to supply AMCP’s is not sustainable, it is difficult to envisage where we will get AMCP’s from in sufficient numbers to operate under LPS if no other RB is required to provide them i.e. Health Boards. The Bill should be amended so that Health Boards are responsible for the supply of their own AMCPs even if the LA remains responsible for approval and registration similar to the AMHP.

Advocacy- Everyone should have the right to an advocate and the process should be one of opt out rather than the requirement that you can only have one if the Responsible Body or AMCP determine this. Advocacy is a safeguard and as such must be available to all. SSWB Wales act would indicate that people have a right to an advocate so this would not fit with the legislation.

Care Home Managers should be removed from the Bill and not required to undertake assessments. The risk of a conflict of interest, poor practice and collusion are present in the amended Bill so it would be preferable not to put care home managers in this position. It should be the responsibility of the Responsible body to arrange for the appropriate professional staff to undertake LPS assessments. In addition Private hospitals should not be allowed to be their own responsible body as this conflict of interest could give rise to the opportunity for another Winterbourne View. The Health Board in which area the private hospital is situated should be the RB.

Renewal- Whilst it is tempting to extend the duration of an authorisation beyond 1 year to up to 3 years this does not provide adequate safeguards. People’s condition and circumstances change and as a minimum should be offered a review annually, this timeframe seems out of step with the current review of MH Act and the time frames for review under the Social Service and Wellbeing Wales Act/Care Act. It appears that this is more about resources and costs than about safeguards.

It is important that 16 and 17 year olds come within the safeguards however in my experience young people often subject to care proceedings/LAC need additional protections and so such situations in my view should have an automatic review by the COP even if this is done on the papers.

Conditions- as a DoLs signatory conditions placed on the managing authority are an effective way of ensuring that care and support is least restrictive, proportionate to the risk of harm, necessary and in P’s best interest. Conditions can be monitored and action taken if conditions are not met. It is necessary that LPS allow conditions as a mechanism of safeguarding P, the Bill should be amended to include the ability for conditions to be identified.

Professional assessments- It is inconceivable that there is no requirement in the Bill for assessments to be undertake by appropriately qualified and registered professionals. It is my view that all assessments should be undertaken by people who have the knowledge, skills and experience and hold the appropriate professional registration. It is not, in my view satisfactory to leave the detail on this to guidance or Codes of Practice as this weakens the legislation and potentially could cause confusion. It is of note that guidance and codes are not open to the same level of scrutiny and consultation as legislation. It would be helpful to have a draft Code of Practice and a view on whether a separate code of practice for Wales is needed as there is one for the Mental Health Act and Wales has different legislation such as SSWBA and WBFG.

Appropriate Person- This is an important safeguard for P but the Bill does not require the AP to maintain contact unlike the requirement on the RPR so potentially is a weakness and may result in P not being able to appeal should they be objecting. The responsible body must make sure that the AP will undertake the role and responsibilities and appeal whenever this is indicated and so the Bill should be amended to ensure the AP fulfils their statutory duty.

Funding/Finance/ Equality Impact

As a senior manager in a local authority adult service, I am very concerned that government has not undertaken a robust impact assessment and as a consequence the LPS will not be funded appropriately just like DoLs. Post Cheshire West my own LA has been placed at significant risk due to inadequate funding of the DoLs scheme by government and there appears to be no recognition of the impact LPS will have. Rather than reduce and streamline the process it will commence with an already unmanageable backlog and the government is silent on how this will be managed. There are significant workforce development issues with inadequate personnel available to operate within the DoLs system and little prospect of this changing under LPS, removing the need for registered professionals does not solve this it simply makes LPS an inferior scheme with less safeguards than the DoLs scheme which is widely regarded as broken. If LPS is to provide safeguards to some of society’s most vulnerable citizens then government must fund it in full and be transparent as to the real cost of LPS. If this scheme is too expensive and therefore not sustainable then rather than push on the government should pause and reconsider, have a further period of consultation and reflection and take the opportunity to look at the recommendations of the Independent Review of the Mental health Act and see how legislation can be streamlined to operate together rather than some of the difficulties the interface causes.

LPS and MHA interface- equity

The MHA and MCA amendment Bill create some particular challenges and inequity. You can have 2 people who lack capacity to determine their care and support and are detained on a psychiatric ward, one is detained under S3 MHA and the other a standard authorisation under DoLs or LPS this is experience by P in the same way. The inequity is that the person detained under the MHA has a quicker route to have their detention reviewed by the MHRT and is also subject to S117 aftercare on discharge. This entitlement to aftercare results in them having free care and support for their mental disorder ongoing. If they have dementia and are placed in a care home this will be free as they do not have to contribute to their care home fees. If on the other hand they were deprived of their liberty under DoLs/LPS they have still been detained with equivalent restriction on their liberty, a less direct /straight forward pathway to have their appeal considered and no entitlement to S117 aftercare. If they are to be placed in a care home they will be subject to a financial assessment and will be means tested. This is not equitable and need to be reviewed so there is parity.

I trust that the committee will find my views and comments of benefit and of assistance when considering the Bill.

Yours faithfully

Mrs Sarah Paxton RSW, AMHP

January 2019


Prepared 15th January 2019