Mental Capacity (Amendment) Bill [HL]

Written evidence submitted by Dr Camilla Parker, Just Equality (MCAB22)

The Mental Capacity (Amendment) [Lords] Bill

The Liberty Protection Safeguards and 16 and 17-year Olds

Submission to the House of Commons Public Bill Committee

Executive Summary

1. This submission focuses on the implications for 16 and 17-year olds if they are included in the ‘Liberty Protection Safeguards’ (LPS) proposed in the Mental Capacity (Amendment) Bill (‘the MC(A) Bill’). It highlights the following points:

i) The LPS system does not fill a gap in the law – it provides an administrative scheme for authorising the deprivation of liberty of some young people aged 16 or 17 years in place of the existing legal mechanisms.

ii) The LPS system provides weaker safeguards than the existing legal mechanisms.

iii) There are significant areas of uncertainty in relation to the application of the LPS system to young people, in particular:

a) decision-making by parents and others with parental responsibility;

b) the circumstances in which a deprivation of liberty arises; and

c) the interface between the LPS system and the statutory frameworks relevant to young people, such as those with special educational needs, looked after children and young people receiving in-patient psychiatric care.

iv) Enhanced safeguards for young people falling within the scope of the LPS system are required, such as:

a) all young people subject to the LPS should have an automatic right to an Independent Mental Capacity Advocate (IMCA);

b) all young people subject to the LPS should have their case reviewed by an Approved Mental Capacity Professional (AMCP); and

c) there should be a specific duty to consult young people’s parents – to establish their views on their child’s care arrangements.

v) To address the concern that as currently drafted, the MC(A) Bill provides inadequate safeguards for young people, government should defer the inclusion of 16 and 17-year olds in the LPS system so that it can undertake further consultation with relevant stakeholders to consider how this administrative process for authorising young people’s deprivation of liberty will apply in practice; in particular:

a) what steps are needed to ensure that the LPS system provides sufficiently robust safeguards for 16 and 17-year olds, including a clear and straightforward process for referring cases to the Court of Protection where judicial scrutiny is required rather than the administrative procedure under the LPS system;

b) how the LPS system can be integrated into existing statutory frameworks relevant to looked after children, young people with special education needs and those requiring in-patient psychiatric care; and

c) the human rights implications for including young people within the LPS system, including how to ensure that young people, with a mental disorder, who lack capacity to make decisions about their care arrangements and are deprived of their liberty, are provided with appropriate and effective safeguards.

Introduction

2. This written evidence is submitted by Dr Camilla Parker. I specialise in the areas of law and policy relevant to the mental health care of children, young people and adults. Through my independent mental health and human rights consultancy, Just Equality, I provide research, training and consultancy services to facilitate and support the development, dissemination and implementation of law and policy, with the aim of enhancing best practice and promoting respect for human rights. I am a member of the Law Society’s Mental Health and Disability Committee and contributed to the Law Society’s submission to the House of Commons Public Bill Committee on the Mental Capacity (Amendment) [Lords] Bill (‘the MC(A) Bill’). I am also an Honorary Senior Lecturer (Tizard Centre, University of Kent). The comments below are submitted in my personal capacity. They focus on the Bill’s implications for young people aged 16 and 17.

Application of the MC(A) Bill to 16 and 17-year olds

3. Following amendments introduced to the MC(A) Bill at Report stage in the House of Lords, the ‘Liberty Protection Safeguards’ (LPS) are to apply to 16 and 17-year olds (also referred as ‘young people’) as well as adults. Thus, the LPS system for authorising a deprivation of liberty will be relevant to young people who lack capacity to make decisions about arrangements for their care (e.g. where they reside, the care and treatment they receive) and who have a mental disorder. Under the LPS the young person’s deprivation of liberty will be authorised by the ‘responsible body’ (the identify of which depends on the circumstances of the case, for example, it might be a local authority or an NHS Trust).

4. The application of the LPS system to young people will be a major change in existing law given that the current ‘Deprivation of Liberty Safeguards’ (DoLS) do not apply to people aged under 18 years. However, the proposed LPS system does not fill a gap in the law – it provides an administrative scheme for authorising the deprivation of liberty of some young people aged 16 or 17 years. In such cases therefore, the LPS system will replace current legal mechanisms.

5. As it covers a deprivation of liberty in any setting in which the arrangements for a person’s care gives rise to a deprivation of liberty, the LPS system might apply to young people in schools, hospitals or children’s homes. Young people with Education Health and Care (EHC) plans, ‘looked after children’, as well as young people receiving care in hospital, including those considered to require in-patient psychiatric care, may fall within the scope of the LPS system.

6. The Department of Health & Social Care’s Equality Analysis Liberty Protection Safeguards – Mental Capacity (Amendment) Bill (the DHSC’s Equality Analysis) [1] makes clear that government’s intention is to ensure that both young people who lack capacity to make decisions for their care arrangements and their families have easy access to safeguards when such arrangements give rise to the young person’s deprivation of liberty. While such an objective is very welcome, it is undermined by the significant deficiencies in the proposed LPS system. Unless these are addressed young people will have far less safeguards than currently available to them. The points set out below are made with the aim of assisting in the work to achieve a better system so that appropriate and effective safeguards are in place for young people whose needs for care and support give rise to a deprivation of liberty.


Areas of concern

7. In its briefing for the House of Commons second reading of the MC(A) Bill (December 2018), the Law Society highlighted a range of concerns about the LPS system as currently outlined in the MC(A) Bill, noting that in ‘attempting to simplify current arrangements, this Bill removes vital existing safeguards for cared-for people’. [2] This submission highlights concerns that are specific to the application of the proposed LPS system to 16 and 17-year olds. These are set out below under the following headings:

i) The LPS: weaker safeguards for young people than existing the legal framework

ii) The LPS: uncertainties in their application to young people

iii) The LPS: enhanced safeguards for young people are required

Further consultation is required

8. To address the concern that as currently drafted, the MC(A) Bill provides inadequate safeguards for young people, government should defer the inclusion of 16 and 17-year olds in the LPS system so that it can undertake further consultation with relevant stakeholders to consider how this administrative process for authorising young people’s deprivation of liberty will apply in practice; in particular:

i) what steps are needed to ensure that the LPS system provides sufficiently robust safeguards for 16 and 17-year olds, including a clear and straightforward process for referring cases to the Court of Protection where judicial scrutiny is required rather than the administrative procedure under the LPS system; and

ii) how the LPS system can be integrated into existing statutory frameworks relevant to looked after children, young people with special education needs and those requiring in-patient psychiatric care.

9. In addition, consideration should be given to the human rights implications for including young people within the LPS system, including how to ensure that young people who are deprived of their liberty are provided with appropriate and effective safeguards. This is because the extension of the LPS system to 16 and 17-year olds at the Report stage of the House of Lords consideration of the MC(A) Bill has meant that the application of the LPS system was not included in the Joint Committee of Human Rights’ scrutiny of the government’s proposals. [3]

The LPS: weaker safeguards for young people than existing the legal framework

10. The effect of extending the LPS system to 16 and 17-year olds is that for some young people an administrative scheme for authorising their deprivation of liberty will be applied rather than one of the existing legal mechanisms. Under existing law, if the care arrangements for a young person gives rise to a deprivation of liberty, this must be authorised as follows:

i) a court order (depending on the circumstances this would be the Court of Protection exercising powers under the Mental Capacity Act (MCA) 2005, under section 25 of the Children Act (CA) 1989 (secure accommodation) or the inherent jurisdiction of the High Court); or

ii) the Mental Health Act (MHA) 1983 (where the deprivation of liberty arises in a psychiatric unit).

11. As the DHSC’s Equality Analysis notes, the raft of robust safeguards under the current system, such as seeking an order from the Court of Protection and the provisions governing detention under the MHA 1983 will not be available to young people falling within the scope of the LPS system:

‘…the Court of Protection, as a highly diligent judicial authority, has very high standards for the protection of both younger groups (16 and 17- year olds, and those in community settings): a guarantee lost in the Liberty Protection Safeguards system. This is also the case for young people detained under the Mental Health Act (if they are in a psychiatric unit) who now could possibly fall under LPS.’ [4]

12. The LPS system will apply to young people who lack capacity to consent to their care arrangements and have a mental disorder. The definition of ‘mental disorder’ is wide (‘any disorder or disability of the mind’) [5] so will include young people with mental health problems (such as anxiety, depression, obsessive compulsive disorders); learning disabilities, autistic spectrum disorders and behavioural and emotional disorders.

13. Thus, a consequence of the introduction of the LPS system to 16 and 17-year olds is that there will be a significant difference in the level of safeguards available to those young people falling within its scope, as compared to those who do not. However, the justification for this difference in treatment is not clear. The Law Commission’s report Mental Capacity and Deprivation of Liberty suggests two main incentives for extending the LPS system to young people, which are echoed in the DHSC’s Equality Analysis. The first is to provide an alternative to making an application to court, with the aim of providing easier access to safeguards. The second is to address the concern that in some cases the existing legal mechanisms for authorising a young person’s deprivation of liberty are not being engaged. Both are considered below.

Is the LPS system an adequate alternative to the current legal mechanisms?

14. The Law Commission considered that it was unacceptable ‘to require that, unless the use of the Mental Health Act is appropriate, a court application must be made in order to authorise a deprivation of liberty’, such a process being ‘unnecessarily onerous and expensive’ for NHS bodies and local authorities and ‘potentially distressing for the young person and family concerned’. [6] Similarly, the DHSC’s Equality Analysis states that applying to the Court of Protection ‘is burdensome and could be distressing for a young person’.

Comments:

· While there may be cases in which the administrative scheme such as the LPS would provide an appropriate and proportionate mechanism for authorising a young person’s deprivation of liberty, this would depend on the adequacy of the safeguards in place. As noted above, there are significant concerns about the adequacy of the safeguards set out in the MCA(A) Bill. Moreover, there are likely to be cases in which the engagement of the more robust safeguards under the existing legal mechanisms for authorising a young person’s deprivation of liberty will be required, for example, where the young person’s care plan envisages a significant use of restraint.

It is essential that the LPS system incorporates a means of identifying cases (which is not reliant on the young person or family raising concerns) where it does not provide adequate safeguards. In such cases, steps will need to be taken to ensure that the young person’s deprivation of liberty is either reviewed by the courts or (in cases concerning in-patient psychiatric care) governed by the Mental Health Act 1983.

· It should also be noted that the Law Commission recommended that the LPS system should not replace the MHA 1983 where the deprivation of liberty arises in psychiatric hospitals. [7]

Will the LPS system address problems within the current legal framework?

15. Having been informed that ‘public authorities are not currently taking cases to court when they should’, the Law Commission raised the serious concern that ‘the legal framework is failing to deliver Article 5 safeguards to many young people who lack capacity to consent to their care and treatment arrangements’. [8] In a similar vein the Equality Analysis states that one of the problems that the LPS system is intended to address is ‘the lack of formal procedure that currently protect young people who are being deprived of their liberty’. It notes that ‘on average there are only between four and twelve’ applications [to the Court of Protection] made by local authorities each year’. [9]

Comments:

· Clearly it is a significant concern if young people are not benefitting from the safeguards under the existing legal framework because public bodies are not applying to the courts when they should. However, in order to ascertain whether introducing the LPS system to young people will address this problem, further investigation is needed to understand the reason for public authorities’ non-compliance with the law.

· If the low numbers of applications to the Court of Protection is due to concerns about the costs of court proceedings, the LPS may help to alleviate the problem. However, there may be other reasons, which the LPS system would not in itself address, such as a lack of knowledge of the law (the Law Commission noted ‘some evidence from consultation of poor knowledge amongst health and social care professionals about how the Mental Capacity Act applies to young people’ [10] ). As discussed below, one area of uncertainty is the relationship between parental consent and the circumstances in which a deprivation of liberty arises.

· The LPS system will add another legislative layer to an already complex area of law.

The LPS: uncertainties in their application to young people

16. The following four key areas in which the application of the LPS system to young people is not clear are considered below: decision-making by parents and others with parental responsibility; deprivation of liberty and young people; the interface between the LPS system and other statutory frameworks and the LPS system versus admission under the Mental Health Act 1983.

Decision making by parents (and others with parental responsibility)

17. The MC(A) Bill makes no specific reference to the role of parents and others with parental responsibility. This gives rise to two areas of particular concern, which are considered below: insufficient duties to consult with parents and the lack of clarity of the right of parents to object to the proposed care arrangements for their child.

Insufficient duties to consult with parents

18. Although they will fall within the group of people who are to be consulted about the young person’s care arrangements (on the basis that they will be ‘interested in the cared-for person’s welfare’ [11] ) parents are not referred to specifically in the MC(A) Bill. Moreover, the Bill states that the main purpose of this consultation ‘is to try to ascertain the cared-for person’s wishes or feelings in relation to the arrangements’. [12] Accordingly, there is no requirement to consult the parents about their views on the proposed arrangements for their child. By way of comparison, under section 22 of the Children Act 1989, local authorities are required to ascertain the wishes and feelings of the parents of a looked after child and give ‘due consideration’ to the parent’s views before making a decision in relation to the looked after child.

19. Despite their absence from the MC(A) Bill, the DHSC’s Equality Analysis clearly anticipates that parents will be involved in the decision-making process. It places great emphasis on the duty to consult, stating that this ‘will be especially powerful when considering 16-17-year olds’. It envisages that:

This consultation better protects the rights of people and families. Including the family in the consultation process gives the family power in the care arrangements; helping to ensure they are necessary and proportionate and so the cared-for person might continue to play a role in the family life. Empowering family members will also improve maintenance of the family unit. (Page 16).

20. To ensure that the LPS system meets this expectation, it is suggested that the MC(A) Bill should be amended to include a specific duty to seek the views of parents, similar to the provisions set out in section 22 of the Children Act 1989.

Lack of clarity on the consequences of parents’ objections to the care arrangements

21. On the face of the MC(A) Bill it would appear that care arrangements that give rise to a young person’s deprivation of liberty can be made under the LPS system despite the parent’s objection to the care arrangements. This is at odds with the current legal framework. For example, under section 20 of the Children Act 1989, where the local authority is accommodating a child with parental agreement, parents can end that agreement and can also remove their child from the placement. [13] This applies equally to young people aged 16 or 17 unless the young person agrees to the placement (which they would not be able to do if they lack the capacity to make decisions about such arrangements for their care). [14] In cases where parents do not agree to their child’s placement but the local authority considers that action is needed to protect the child or young person, it would need to seek a court order to do so, for example, by initiating care proceedings (in relation to children and young people aged under 17 years) or applying to the Court of Protection (where the young person lacks capacity to make the relevant decision).

 

22. The Law Commission’s proposals envisaged that ‘if the parent of a 16 or 17 year old objected to the deprivation of liberty, they would continue to have the right to oppose it in a court’. [15] This would seem to be reflected in the MC(A) Bill, in that there is no provision that requires the responsible body to apply to the court if the young person’s parents object to the care arrangements giving rise to their child’s deprivation of liberty. If this is the case, the LPS system will permit a young person to be placed away from their family home, despite their parents’ objection and it would be for the parent to initiate court proceedings to challenge this decision. As such, the onus for seeking a court order will have shifted from the body responsible for the deprivation of liberty to the young person’s parents.

23. To avoid unnecessary confusion over the relevance of parents’ objections to their child’s care arrangements, the MC(A) Bill should provide that a deprivation of liberty cannot be authorised under the LPS in the face of objections by the young person’s parents (unless the young person is subject to a care order (section 31 of the Children Act 1989) or interim care order (section 38 of the Children Act 1989)).

Deprivation of Liberty and Young People

24. The LPS system will only be triggered if the care arrangements give rise to a deprivation of liberty. This is an area in which there is a significant difference between the situation of adults and under 18s.

25. Following the Supreme Court’s 2014 decision in P v Cheshire West and Chester Council and P v Surrey County Council, [16] adults who lack capacity to make decisions about their care arrangements will be deprived of their liberty if they are confined, the test for this being whether they are under ‘continuous supervision and control and are not free to leave’. However, the situation differs for young people because the courts have held that parents of children and young people under 18, may in certain circumstances consent to their child’s confinement. [17] If the consent of the young person’s parents is considered sufficient (because it falls within the range of decisions that parents can make) and the parents give their consent, then no deprivation of liberty arises. However, to date, the courts have set no clear limits on the circumstances in which parents may consent to their child’s confinement.

26. This is an area in which the MC(A) Bill could provide clarity, for example by stating that parental consent cannot authorise a young person’s confinement (thereby placing young people in the same position as adults). However, this issue may be resolved by Supreme Court whose decision on whether parents may consent to their child’s confinement where their child is 16 or 17 years old is awaited.

The interface between the LPS system and other statutory frameworks

27. The MC(A) Bill refers to young people who have Education Health and Care (EHC) plans, who are subject to a care order or are accommodated under section 20 of the Children Act 1989 (and the equivalent provisions for Wales). However, it is not clear how the LPS system is intended to integrate with these statutory regimes.

The LPS system versus admission under the Mental Health Act 1983

28. The application of the LPS system to admissions of young people to psychiatric units raises specific concerns. Under the MC(A) Bill, the LPS system would be an alternative means of authorising a young person’s admission to a psychiatric hospital. This would be subject to the complex provisions set out in Part 7 of Schedule 1 of the MC(A) Bill. A key determining factor will be whether the young person objects to the in-patient mental health care. Those young people who object to such care fall outside the scope of the LPS scheme and the MHA 1983 would need to be applied (if the criteria are met).

29. Thus, question whether the young person’s deprivation of liberty can be authorised under the LPS system, rather than the procedures for admission under the MHA 1983, turns upon whether the young person is considered to object to the proposed in-patient mental health care. However, it is not clear what would amount to an objection. For example, if the young person was subject to regular restraint, would the need for such restraint be seen as the young person expressing their unhappiness with the treatment and care?

30. Those young people who do not fall within the scope of the LPS and are therefore detained under the MHA 1983 will have access to a range of safeguards that would not be available to them under the LPS. Such safeguards include an automatic entitlement to an Independent Mental Health Advocate and the right to apply to the Mental Health Tribunal for discharge from detention (with free legal representation before the Tribunal).

The LPS: enhanced safeguards for young people are required

The right to an Independent Mental Capacity Advocate (IMCA)

31. The MC(A) Bill provides that an IMCA should be provided unless an "appropriate person" is available. It is likely that in many cases young people’s parents will be considered to be an "appropriate person" which will mean that an IMCA will not be appointed to represent and support them. While most parents will be seeking to achieve the very best for their child, this is not a substitute for independent advocacy. IMCAs will have knowledge of the relevant law, policy and practice which most parents will not. In contrast, all individuals detained under the Mental Health Act 1983 have the right to an Independent Mental Health Advocate.

32. It is suggested that the MC(A) Bill is amended to provide that young people who are subject to the LPS scheme have an automatic right to an IMCA.

The right to a review by an Approved Mental Capacity Professional (AMCP)

33. Given the complexities that are likely to be involved where the care arrangements of a young person give rise to a deprivation of liberty, particularly where the young person is to be placed away from the family home, it is suggested that an AMCP must review the care arrangements for all 16 and 17-year olds subject to the LPS.

Consultation with parents

34. As noted above, the MC(A) Bill should provide a specific duty to consult with parents to ascertain their views about the care arrangements for their child.

10 January 2019


[1] December 2018, 12; available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/765385/equality-impact-assessment.pdf.

[2] December 2018, 1: available at: https://www.lawsociety.org.uk/policy-campaigns/public-affairs/parliamentary-briefing/mental-capacity-amendment-bill-hoc-second-reading/ .

[3] The Joint Committee of Human Rights’ report on the MC(A) Bill (October 2018) is available at: https://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/news-parliament-2017/mental-capacity-bill-report-published-17-19/

[4] DHSC’s Equality Analysis (see note 1); 12.

[5] Under the Mental Capacity (Amendment) (MC(A)) Bill (see ‘Definitions, Schedule 1, para. 3) ‘mental disorder’ has the meaning given by section 1(2) of the Mental Health Act 1983.

[6] Law Commission, March 2017, para. 7.28; available at: https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2017/03/lc372_mental_capacity.pdf

[7] Mental Capacity and Deprivation of Liberty (see note 5), Recommendation 37.

[8] Mental Capacity and Deprivation of Liberty (see note 5), para 7.30.

[9] DHSC Equality Analysis (note 1), 12.

[10] Mental Capacity and Deprivation of Liberty (see note 5), para 7.38.

[11] MC(A) Bill Schedule 1, para 20(2)(c).

[12] MC(A) Bill Schedule 1, para 20(3).

[13] See sections 20(7), 20(8) and 20(11) and Williams v Hackney  [2018] UKSC 37; available at: www.supremecourt.uk/cases/docs/uksc-2017-0037-judgment.pdf.

[14] Section 20(11).

[15] Mental Capacity and Deprivation of Liberty (see note 5) para 7.37.

[16] [2014] UKSC 19.

[17] See Re D (A Child) (Deprivation of Liberty) 2015 EWHC 922 (Fam) (under 16s) and Re D (A Child) [2017] EWCA Civ 1695 (16 and 17- year olds).

 

Prepared 15th January 2019