Mental Capacity (Amendment) Bill [HL]

Written evidence submitted by Andy Nash (MCAB16)

Re Mental Capacity (Amendment) Bill

I write to you in a personal capacity, although I am employed as a Local Authority Team Manager of a DoLS Team and am a University Lecturer delivering qualifying training for Best Interests Assessors. I have also been a Best Interests Assessor since the DoLS regime was first implemented .

The Mental Capacity ( Amendment Bill) is proposing to change the Deprivation of Liberty Safeguards protections afforded to people who are assessed to lack capacity to decide where they should live in order to receive care and treatment. Although I agree that the present system is broken and in desperate need of reform, my concerns are th at the new one being proposed is ridden with flaws which risk creating even greater confusion , inefficiency and reduced safety in its place .

The Deprivation of Liberty Safeguards were intended to prov ide access to advocacy and the right of appeal for anyone who was deprived of their liberty because they were deemed not to have the capacity to decide where to live and what care to receive. This system extended Article 5 human rights to l iberty and freedom from unlawful arrest to people who may have previously unable to voice their objections or gain access to legal representation to challenge their detention. However the scheme has been vastly underfunded and, as a result, there is a n ever increasing backlog of people who should be offered these fundamental rights who remain unprotected. 137,065 people are on the waiting list according to the latest figures and this is likely to be an underestimate.

The new system does nothing to ad dress this funding shortfall . In fact it ambitiously extends the number of people who will be covered as it will include 16 and 17 year olds as well as people who are resident in their own homes or in shared lives or supported living arrangements. However the expectation is that this should be delivered with a £200 million reduction in resources provided to Local Authorities .

The effects of this broadening out of demand, whilst further contracting the funding in this area will make a successful implementation of the new system even less possible than has been the case for the existing failing regime.

Furthermore I believe that there are hidden unin tended consequences within the B ill which are likel y to weaken the rights of individuals to be free from state intervention and carers abilities to provide safe and legally defensible services. Some of my concerns are as follows:

1. B y shifting the responsibility to conduct assessment s away from trained "Best Interests Assessors" to others for the majority of cases there is significant danger of creating a skills gap . Referrals to DoLS Teams frequently show misunderstandings about when a DoL is occurring or when a person lacks capacity to decide upon residence. A half day training for 10% of social workers and doctors as proposed is unlikely to address this gap. This is especially the case as many of the people c oncerned will be in hospitals, nursing homes or domestic settings where such assessments are not currently undertaken eg by the nursing staff, home managers or carers. The financial impact assessment currently will seriously underfund s the training required to operate the new scheme and needs to be exposed to further scrutiny.

2. Furthermore there is no expectation that "Mental Health Assessors" will make the difficult decisions about whether a mental di sorder is present and whether the Mental Health Act should be used. Currently Supervisory Bodies are funded to purchase these specialist assessments. Without a recognised role for Mental Health Assessors and funding to provide a fee to perform this role , GPs are unlikely to fill this gap and so an additional bottleneck of assessments waiting for a mental health assessment is only to be expected.

3. By introducing a criteria that it is only where a detained person "objects" that they should be offered more than a paper based assessment, the new sc heme waters down the ability to speak to someone who is independent and not responsible for their detention. In fact the proposals allow for these paper based decision s to be made by care home managers or commissioners of care who are likely to have a conflict of interest in detaining the person - either for financial reasons or because it easier to not be exposed to external scrutiny. If no independent review is to be funded in every case, i t is my view that there needs to be clear guidelines to avoid a conflict of interest. Although this is promised within the Code of Practice, this protection is so vital that it need s to be made available for scrutiny before Parliament can pass this legislation. Furthermore , as a very minimum, any Appropriate Person or Advocate appointed should be required to record the views of the person and provide a written assessment of whether they are objecting or not, so that their voice can be impartially represented in any paper based review.

4. The access to appeal and redress under LPS will be slow and costly (with proceeding needing to be taken through the Court of Protection taking several months and costing on average £10,000 ) . With the increase in numbers of assessments likely to take place as the scope is widened to other community settings and 16 and 17 year olds , I predict that there will be excessive costs to health and care providers and individuals who will need to divert money away from front line services to pay legal fees in these cases. Whereas the current system fails as so many of these cases go unassessed. The new system is likely to allow more assessments to take place but the funding for an increased level of court appeals is not reflected in the Impact Assessment. In fact it predicts that number of appeals will reduce by 50%. This is another area of serious underfunding which requires much further research and scrutiny into its evidence base .

5. Currently AMCPs are only required to provide an independent assessment where the detained person objects. This criteria should be widened to include cases where the family object or have contact restrictions placed upon them. Without this it is hard to see how the " Bournewood gap" , which initially prompted the need for deprivation of liberty legislation where there was no objection from the person themselves, will be adequately filled by the new scheme.

6. T he definition of what constitu t es an "objection" will become even more important and should be clearly defined in the law and Code of Practice. For example does an objection have to be consistent or could occasional un settledness qualify for a Court Application? Furthermore does an objection to any aspect of care qualify or does the objection have to be to residence? The consequences of widening the definition to objections to all aspects of care will be huge as may people resist aspects of personal care for example and this gateway decision will become even more important as it triggers an assessment by an AMCP and potentially a Court of Protection appeal .

7. The current proposals make Local Authorities solely responsible for the supply of AMCPs. This offers an opportunity for Health and CCG Responsible Bodies to "refer on" and pass off their responsibility for disputed, difficult or marginal best interests or capacity assessments within their establishments to Local Authorities. This could lead to a big increase in AMCP and possibly Court referrals from these sources as there will be a perverse incentive to identify objections. Furthermore as most Local Authority employees are likely to have social care rather than health backgrounds, this misses the opportunity to develop these skill sets within specialist settings. In particular social workers are not always best placed to decide upon packages of care in hospitals that are mostly provided for health treatments. I suggest that it is better to insist that each Responsible Body trains and provides an adequate supply of AMCPs from within its workforce, reflecting the skills mix required. Local Authorities could still provide "Approval" and quality assurance oversight .

8. The costs and financial impact assessment for these changes have no t been transparently calculated. It is my view that the proposed LPS scheme, whilst claiming to provide better protections at a lower cost, will in fact have the reverse effect. Costs are likely to spiral as a vastly increased number of people will be covered by these arrang e ments and Court costs will spiral . However the resources provided to provide skilled assessments and access to appeal rights will be significantly reduced.

I am aware that many groups have raised objections and concerns about this legislation, including the Joint Committee on Human Rights and the Law Society . The current Deprivation of Liberty Safeguards system has expanded the human rights of some of society’s least protected individuals in society but have never been adequately funded. Please ensure that this legislation is used only to strengthen those protections and the abilities of medical and care professionals, advocates and the courts to deliver their services humanely and transparently in future. It is my view that the current Liberty Protection Safeguards proposals seriously risks having the opposite effect . They also risk having a hugely negative impact upon Local Autho rity funding at a time when resources to provide essential care already faces unprecedented demands.

Yours sincerely

Andy Nash

January 2019


Prepared 15th January 2019