Mental Capacity (Amendment) Bill [HL]

Written evidence submitted by Derek Boothby (MCAB19)

I am the Mental Capacity Act professional lead for Wakefield Council, and I chair the Yorkshire and Humber MCA/DoLS forum, in that capacity I attend regular meetings of regional leads in England.

I have taken an active part in the Law Commission consultations that resulted in the original LPS proposals.

I teach on BIA and AMHP qualifying courses (at Masters Level) at a variety of Local Universities and still practice as a BIA and AMHP.

This submission, however is my personal opinion and should not be taken as those of my employer, or the Yorkshire and Humber regional forum.

1) In defence of the current DoLS scheme, this has never been adequately funded by central Government, and in particular, the effects of the Supreme Court Judgement known as Cheshire West, which resulted in at least a 10 fold increase in workload for most Supervisory Bodies has never been acknowledged or funded, it was on this basis that the House of Lords described DoLS as " broken" My own local authority has always prioritised DoLS and this has resulted in a waiting list of around 200, which wait on average 3 months, this is far better than the national average. The DoLS scheme when applied properly provides excellent safeguards for the most vulnerable adults in our Society, to abandon this scheme, on the pretext of saving money, does not stack up.

2) The consultation undertaken by the Law Commission, which resulted in the original LPS proposals was its biggest ever, adequate time was allotted to allow all interested parties to take part and express a view, however the current proposals only bear a passing resemblance to the original proposals, and there seems to be unseemly haste, to progress these through both the Lords and the Commons, I am reminded of "act in haste, repent at leisure"

3) With regards to the Bill itself, there needs to be a distinct duty to consult P, and not as part of a requirement to consult a host of others.

4) The role of the AMCP which replace the role of the BIA, would only be available to those who object, this calls in to question how objection will be defined, and who will decide if P is objecting?, as for the role of the AMCP this appears to be the responsibility of the Local Authority, however this means that other responsible bodies will be able to impose on the LA rather than being responsible for its own authorisations, each Responsible Body should have to provide and fund AMCP cover.

5) Care Home Managers, the amendments to the Bill does limit the responsibilities of Care Home Managers, however they should be removed from the equation entirely to ensure that a conflict of interest does not occur. This would properly fall under the remit of the Responsible Bodies.

6) All assessments under LPS should be undertaken by trained professional, currently there is no expectation that this will be the case.

7) There appears to be an expectation the a new Code of Practice will clarify maters and give practice examples, as this has not been produced , even in draft form, it cannot be consulted on, and looked at alongside the Bill, so could potentially lead to confusion.

8) One of the strengths of the DoLS scheme is the use of conditions, imposed by the BIA, to reduce the need for the DoL. There is no direct equivalent proposed in the Bill, which could further reduce P’s rights and allow those caring for P to do what they wish, especially if this is combined with an eventual maximum duration of an authorisation being extended to 3 years, without professional scrutiny or oversight during this time.

9) Overall some of the aims of LPS could be easily achieved by over hauling the DoLS scheme, and by adequately funding the same, by limiting the use of urgent authorisations, keeping the role of the Supervisory body, and the independence of the BIA, especially the requirement that P is seen by the BIA, The current DoLS scheme could have been tweaked, to be more efficient, and to promote the effective use of resources, the scheme is now better understood and its strengths are widely recognised, not least of which is the regular review, (max 12 monthly) by a properly trained and supported professional.

10) I understand that a definition of Deprivation of Liberty, will be formulated at some stage, I thought that this had already been achieved in case law (which was the original intention of Parliament) in the Supreme Court Cheshire West case which established with great clarity, the "acid test" If any definition departs from this it risks immediate conflict in practice, and through the Courts, so unless this overturned in the Supreme Court or altered by primary legislation, it risks causing significant confusion. If the intention is to limit Article 5 ECHR in some way then this risks disadvantaging some vulnerable people, and creating a division between those entitled to the safeguards and those who fall outside.

January 2019


Prepared 15th January 2019