Mental Capacity (Amendment) Bill [HL]

Written evidence submitted by the Association for Real Change (ARC), Care England, the National Care Association (NCA), the National Care Forum (NCF), the Registered Nursing Home Association (RNHA), and the Voluntary Organisations Disability Group (VODG) (MCAB24)

We, the above bodies, have been closely involved, on behalf of our members, in consultations with the Law Commission in preparation of its Draft Bill. We were very surprised at the difference between that Bill and this one. Our concerns have been presented to the Government Bill Team without effecting change. While pleased with the amendments achieved in the House of Lords, we can see that the Bill is unworkably complicated, remains overly burdensome to care homes, is silent on many important issues, and fails to protect the essential human rights of many people who lack mental capacity.

Executive Summary

• There remain major gaps in providing the essential supporting documentation and consultation, most importantly, for, and with, those reliant on these proposals for the protection of their most essential human rights.

• Confusion and illogicality permeate the Bill; this is particularly noticeable following the amendments which have removed some of the most worrying features.

• The suggested statutory definition of deprivation of liberty, to apply only within the Mental Capacity Act as amended, adds a probably unjustifiable layer of complexity. The definition fails in the attempt to reduce the remit of the Supreme Court Cheshire West clarification of Article 5 of the European Convention on Human Rights.

• Regulation is an essential element of any system designed to protect the rights of a population as vulnerable as this. The opportunity, missed on earlier occasions, should now be taken, to try to get this right. We recommend that Government consults on how regulation and inspection can illuminate the effects on people at the heart of this process of the scheme to protect their rights.

• The rush to statute is unnecessary: this legal framework is important enough to get it right. The level of concern expressed throughout health and social care, as well by others, such as the advocacy and Third Sector organisations, has led to significant changes in the House of Lords, for example to the role of care home managers. We recommend a delay to the progress of the Bill to enable the failures in documentation and consultation to be remedied.

1 Major gaps in consultation and supporting documentation

1.1 In contrast with the Law Commission’s careful, ‘co-production’ approach to creating a replacement framework for the deprivation of liberty safeguards (DoLS), this Bill was subject to little or no consultation (we still await the response to a Freedom of Information request asking for details of the alleged consultation process, such as who was consulted, and the topics discussed). It is unsupported by essential information.

1.2 In the Impact Assessment (IA) of 09.07.2018 the Bill’s proposals are misleadingly described as merely ‘a small shift’ (at 8.3) from those of the Law Commission, and presented even in the recent call for evidence to this committee as ‘broadly (following) the Law Commission’s proposals, with some changes.’ This original IA has been criticised, for forecasts such as zero implementation costs, or that care home managers would only require half a day’s familiarisation with the process before taking on the responsibilities currently held by experienced professionals after significant additional training, or that doctors would assess the relevant capacity of care home residents either free or for £15. The Bill was represented primarily as a money-saving alternative to DoLS. Due to flaws in the IA this would never have been factually the case, and the confusion added by necessary amendments, for example to the role of care home managers, will inevitably increase costs. Despite assurances from Lord O’Shaughnessy that there was a need for the significant training and implementation burden to be addressed and that a revised IA would be supplied, there is as yet (09 January 2019) no revised assessment. The Bill should not progress without an updated IA.

1.3 There is an ongoing lack of a draft code of practice. In contrast to the measured progress of the Mental Capacity Act 2005, which was accompanied throughout its passage by a draft code of practice, there has as yet been no sight of any draft code. This is particularly concerning given the reliance of the Bill’s proposers on the code as the place where all confusions will be clarified and indeed amplified. This is additionally doubtful in light of recent Supreme Court caselaw which underlines that the code does not have the power of statute. ( Detail about the rights to information and advocacy, and clearer outlining of the role of the care home manager should be on the face of this short Bill rather than, as at present, left for elucidation within the, as yet non-existent, code of practice.

1.4. Consultation. It is essential that Government complies with the Equality Act 2010, and the UK’s duties under both the Optional Protocol to the Convention Against Torture (OPCAT) and the Convention on the Rights of Persons with Disabilities (CRPD). These ensure that government fully informs and consults those who might find themselves subject to the new process for authorising deprivation of liberty and their informal carers and supporters. OPCAT places clear responsibility on CQC (as part of the National Preventative Mechanism) to prevent unlawful deprivation of liberty as well as ‘hearing the voice of the detained person’. In parallel, the CRPD is eloquent and forceful in mandating ‘nothing about me without me’. Government’s failure to inform or consult the very population affected by the Bill is of concern.

1.5. At no stage has there been an ‘easy-read’ version of the Bill or of any of the Bill papers. On having this pointed out, the Bill team gave assurances in the autumn that these would be forthcoming, but nothing has appeared. This excludes the people with undoubtedly the greatest interest in the proposed new scheme, those who may have their right to liberty engaged by its use. Similarly, there is nothing in the Bill about supporting people to enable them to make their own decisions: this is a cornerstone of the Mental Capacity Act and of the CRPD, highlighted in their principles. It is insufficient – and probably unlawful - to rely on the code of practice to remind decision-makers and providers of health and social care of their responsibilities in this area.

1.6. The structure of the Bill’s progress has prevented the meaningful involvement of non-professionals, whether people who might be deprived of their liberty or their relatives or other informal supporters. This is because it started, unjustifiably given the strength and breadth of concern and objection to the Bill, in the House of Lords. This structural injustice shows itself now, in the Committee accepting only written evidence, rather than being able to hear, vividly and informally, their concerns from those affected. It was further demonstrated from the start by the timing of the Bill’s introduction and passage: immediately before and after the summer recess, in the Lords, and similarly in the House of Commons on both sides of the Christmas recess: all in a rush at busy times of the year.

2 Confusion, complexity and illogicality

2.1 An intention for the Bill was to simplify the perceived complexity of DoLS. Hence it was never comprehensible why the Bill should have arbitrarily separated out care homes, and their managers, from all other providers of adult social care, such as supported living, shared lives schemes, or domiciliary care. These are often technical distinctions in registration of services by the same or similar providers, for the same population. Indeed, a decade ago, changes to the benefits structure led many care homes to convert into supported living providers. From the inception of DoLS it has been hard to explain to very similar providers – many, indeed, providing both supported living or domiciliary care from a site that is also a care home – why these often-indistinguishable service types should be arbitrarily treated differently.

2.2 The Bill Team say that supported living often cares for people living with more complex conditions than care homes do, and that community providers therefore need more support from the local authority: there is no evidence for this.

CQC found that:

• Better care – as noted by the provision of providers rated ‘outstanding’ – was more prevalent in community provision than either residential or nursing homes

• Smaller homes provided better care than larger ones

• Nursing homes (where so many people are living with dementia) were of the greatest concern to the regulator, with 3% requiring improvement.

2.3 Again the Bill Team thought that care home managers were already carrying out the hefty role envisaged, even after the amendments, in s.17 of the Bill, and that therefore the costs of enabling them to carry out the local authority role would be minimal. This ignores the reality of their current DoLS role. It also ignores the evidence from Skills for Care about the fragility of skilled staffing and management in residential and nursing homes. Within an annual staff turnover rate of 30% in the sector, the turnover of registered managers is 22% and that of registered nurses, a group singled out by the Bill Team as likely to have the abilities to carry out assessments, an astonishing 32.4%.

2.4 There is no reason for singling out care home managers for extra responsibility, over their colleagues in other care settings, except for to transfer significant costs from struggling local authorities to struggling care homes. The effect will inevitably be that some providers who continue in the sector – many may not - pass on the costs to the affected residents. It is an affront to natural justice (as well as a breach of the principles of the Human Rights Act 1998 and the CRPD) to add to the discrimination facing people lacking capacity by making them, uniquely, pay for the protection of their universal rights.

2.5 Following the House of Lords amendments to the care home manager role, the picture is ineluctably confused. There is no justification for the additional complexity the Bill brings to the ways a person’s rights can be protected, which now amount, apparently, to five routes, not including the Court of Protection, after DoLS (2 routes, including the Court of Protection). Authorisations will be arranged by the local authority for people aged 16 and 17 as long as they’re not in care homes, where they have to be 18 for deprivation of liberty to be recognised; via hospitals, provided the person isn’t receiving NHS Continuing Health Care, in which case it looks as if it’s the Clinical Commissioning Group; via the care home manager (unlike their supported living colleagues) provided the local authority decides they are ‘up to it’.

2.6 The Bill’s proposals are supposed to enable an authorisation to travel with the person. To some extent this is now possible and welcomed. However, it only works when the changes of setting have been predicted. So, all will be well if the person goes regularly to respite or day care, but is more complicated than before if the situation is unexpected, such as a person being admitted to hospital following a fall. And this is before we try to apply the suggested statutory definition, which is different in different circumstances (see below). We dread trying to explain these distinctions to providers, to people using services, and to their relatives; and we deplore the haste to force these unworkable distinctions on providers of adult social care.

3 The suggested statutory definition

3.1 The draft definition has some real difficulties, and it is a surprise to us that it is being seriously suggested. It is clear that the intention is to pull tighter the rather wide understanding of deprivation of liberty clarified by the Cheshire West judgement in 2014 . In that judgment, the Court outlined an ‘acid test’, that a person who lacks capacity to consent to arrangements to give them necessary care or treatment is deprived of their liberty if they are both:

Not free to leave; and

Subject to continuous supervision and control.

3.2 This definition, seeks to narrow this ‘acid test’, with the clear intention of taking people out of the reach of Article 5 protection. Some of it reflects the acid test, but many clauses replace simplicity with incomprehensibility. Thus, even if ‘subject to continuous supervision’, a person is not deprived of their liberty if they are ‘free to leave the place temporarily (even if subject to supervision outside that place).’ This seems to us surreal and also to risk real harm to the rights of that person; provided someone takes them out now and again, for a walk around the block, they are removed from the reach of the safeguards that Article 5 provides. This contradicts the Supreme Court, European Court rulings and other case law, which all hold that as ‘outings with permission’, even without direct supervision, cannot be used to argue away a deprivation of liberty.

3.3 A person similarly loses the protection of Article 5 when being given ‘medical treatment for a physical illness or injury’ when the arrangements would be ‘the same (or materially the same’ for any person receiving that treatment’ However, the effect of those arrangements may be very different if the person lacks capacity to understand why they are being treated in a way they experience as undignified and painful.

3.4 The final clause, again surreally, defines ‘free to leave’ as being, actually, not free to leave but if they ‘expressed a wish to leave they would be enabled to do so. We cannot forget that the lawyers representing Bournewood hospital argued, right to the European Court of Human Rights, that HL was not expressing any wish to leave – he had no speech but was self-harming and very distressed. . This definition risks a return to pre-Bournewood paternalism, to be avoided at all costs. In addition, and as with so much of this Bill, this replaces clarity – here, the acid test – with something far more confusing and potentially harmful to people lacking capacity

4 Regulation

4.1 The opportunity was missed when DoLS came in to create a coherent monitoring framework, for DoLS and the wider MCA. This was highlighted by the 2014 House of Lords report on implementation of the MCA which recommended a dedicated body to monitor the MCA, and improve implementation. In this context it is galling that the Bill fails adequately to address the importance of getting regulation right. It is not good enough that the only reference in the Bill to monitoring appears to be cut and pasted from that in the DoLS schedule A1.

4.2 The Care Quality Commission as regulator, met a recommendation in the House of Lords committee report to inspect all providers of adult health and care services against the empowering ethos of the MCA, including DoLS. But every year the CQC Annual State of Care report shows the limitations of its remit – for example, it does not inspect local authority DoLS services, or specially visit people deprived of their liberty to understand how their Article 5 rights are being protected, and how this affects them.

4.3 We recommend consultation on how to achieve flexible and person-centred inspection and regulation, focusing on how inspection can illuminate ways to prevent or reduce deprivation of liberty in health and social care.

5 The rush to Statute

5.1 The Bill seeks to introduce major changes to the rights of people lacking capacity in health and social care settings. Despite assurances (see 1.1, above) it does not reflect the thoughtful Law Commission proposals. It was not subject to a recognisable process of consultation, and, following necessary but piecemeal amendment in the House of Lords, is more than ever internally inconsistent and confused.

5.2 Baroness Thornton (Lab.), commented at Third Reading, ‘The Minister has set the homework that the Commons needs to undertake to get this Bill into even better shape; it needs to consider length of renewal periods, the interface with Simon Wessely’s [Mental Health Act] review, the role of IMCAs, remaining conflicts of interest, impact assessments and implementation, and indeed, the issue of the definition of deprivation of liberty, which the Minister has undertaken to tackle. It also needs to discuss money, budgets and so on, as we have not done so during the passage of the Bill. (Hansard, col. 1252)

5.3 Referring to the interface between the MCA’s Liberty Protection Safeguards and the Mental Health Act, Lord O’Shaughnessy reassured Peers that further decisions remained to be taken about that interface, but said, ‘It would be precipitous to try to do that now, before we have had an opportunity to consider it properly. In saying that, I do not mean it is not important-quite the opposite. It is so important to get it right that rushing through it could store up problems of a kind that we do not want.’ (Hansard, col. 1249).

5.4 Yet the Bill - except for the parts concerning the interface with the Mental Health Act, which are being left as incomprehensible as under DoLS - is being rushed through Parliament with unseemly haste. We agree that the interface with the Mental Health Act is too important to be rushed, but suggest that the other elements of this Bill, that impinge just as greatly on the rights of vulnerable people, are equally deserving of careful, collaborative consideration.

5.5 It is clearly a very good thing to be planning to replace DoLS; it is wrong that people are waiting so long to be assessed. But this ill-considered Bill risks storing up a range of ‘problems of a kind that we do not want’ and should be slowed down or returned for redrafting. We recommend that it should reflect far more closely than at present the thoughtful, widely consulted-upon, draft Bill produced by the Law Commission in 2017. It is far too important to be rushed through, in its current flawed and confused condition.

January 2019


Prepared 15th January 2019