Mental Capacity (Amendment) Bill [HL]

Written evidence submitted by Stephen Ward, Lead for MHA and MCA Isle of Wight Council and Isle of Wight NHS Trust

I submit the following views on the proposed Liberty Protection Safeguards (Mental Capacity Amendment Bill) in a personal capacity, not on behalf of the above organisations, but with the knowledge and experience of my professional role as the manager responsible for deprivation of liberty in both NHS Trust and Local Authority. I am a qualified social worker, previously an Approved Social Worker. I have been in my current role for 10 years and in addition to managing the DoLS process for the Supervisory Body I also oversee the use of the MHA in the NHS Trust, manage the Approved Mental Health professionals for the Local Authority and provide a range of training and professional consultation on MHA and MCA across the local health economy.

1. Summary of my evidence:

a. The scheme in general: the scheme separates the process of authorising deprivation of liberty from the care management process, contrary to the Law Commission recommendations. I believe this is a fundamental flaw, which perpetuates the practical difficulties associated with the DoLS scheme and does not provide effective protection of relevant persons rights.

b. Definition of ‘deprivation of liberty’: the current definition (the ‘acid test’ formulated by the Supreme Court) is in my view too broad and is not consistent with original aim of the ECHR or European courts interpretation of the convention. A scheme that does not narrow the application will remain impracticable, too costly and represents an unwarranted interference into private and family life.

c. The effectiveness of the safeguards in protecting the rights of the relevant person: the responsibilities placed on managers in private establishments create a conflict of interest that undermines the intended safeguards. Managers are ill-equipped for this role and there is inadequate training provision. The scope for access to both advocacy and specialist professional scrutiny by AMCPs needs to be broadened.

2. General Comments in respect of the approach and process proposed in the LPS

2.1 In March 2017 the Law Commission published a proposal for a scheme to replace the Deprivation of Liberty Safeguards which provided for the authorisation of deprivation of liberty to be ‘upfront’, integrated into the process of assessment that resulted in arrangements resulting in a deprivation of liberty. Departing from that proposal in my view creates a fundamentally flawed scheme, that does little to address the concerns and difficulties associated with the deprivation of Liberty Safeguards.

2.2 The provision of care or treatment in a residential setting (care homes and hospitals) necessarily is preceded by an assessment of the relevant person’s needs, under appropriate legislation (Care Act, NHS Acts). If that assessment finds that the person lacks the mental capacity to consent to the necessary arrangements to meet those needs, additionally a best interests decision is required, to confirm that the care arrangements are in the person’s best interests and, if involving any restraint, necessary to protect the person from harm and the least restrictive option (sections 5 & 6 MCA 2005). The Law Commission proposal was for an independent scrutiny of the assessments and care plan resulting in deprivation of liberty and, where agreed, the issuing of an Authorisation. This process would need to be completed before the deprivation of liberty occurred.

2.3 Although the current DoLS scheme Standard Authorisation process was meant to precede placement, this often does not happen, due to process being separate from the care management process, cumbersome in practice and inadequate resourcing. The Law Commission proposal provided a single, streamlined process, with safeguards where objections or other issues required more detailed scrutiny.

2.4 The scheme proposed by the MCA Amendment Bill is, like the current DoLS scheme, a ‘bolt-on’, separate from care management, which places the responsibility for assessing and justifying the deprivation of liberty with the provider of services, not the commissioner, where logically it should sit In my view this proposed scheme will fail to protect the rights and interests of relevant persons and prove to be unmanageable in practice.

3. Definition of the term ‘deprivation of liberty’

3.1 The lack of definition of the term ‘deprivation of liberty’ created considerable uncertainty in the early days of the DoLS scheme, until the Supreme Court formulated the ‘acid test’ to clarify when a deprivation of liberty is occurring. The acid test widened the scope of deprivation of liberty to include almost every person in care home or hospital who lack the capacity to consent to their admission, including those who are confined by their condition (eg. patients in a coma) and those receiving care with little or no apparent restriction (residents in care homes who are essentially content with their situation). This was surely never envisaged in the original drafting of the European Convention on Human Rights and also represents an unwarranted level of state interference into private and family life.

3.2 The impact was especially significant in terms of resources, requiring Local Authorities to invest far greater budgets than projected by the Regulatory Impact Assessment. Ironically, whilst widening the scope of those entitled to the protection of the DoLS, in practice many of these people have never enjoyed that protection, because their cases have remained on never-ending waiting lists. The sheer volume of requests also makes it much harder to reliably identify those who really are in need of the Safeguards.

3.3 The proposed definition in the MCA Amendment Bill (Section 4ZA Meaning of Deprivation of Liberty) does go some way to address this issue. In particular it clarifies that persons receiving medical care in hospitals are not to be considered deprived of liberty. However, the exclusions from deprivation of liberty provided for in in subsections 3 and 5 will still mean that the vast majority of care home residents will be within the scope of deprivation of liberty (in the region of 3-400,000 people in England). It will include many people whose care arrangements are agreed by all involved to be necessary and in their best interests, who are clearly content with those arrangements and where the process of Authorisation risks being disproportionate and intrusive.

3.4 One example of this is where a family has made arrangements for the care of a relative in a care home, which is self-funded because the person’s resources exceed capital limits for public finding and the care subsequently makes a DoLS request, which is then assessed and approved by the Local Authority. Families in such situations often ask why the state needs to interfere in the arrangement, having previously refused support in arranging care.

3.5 The Joint Committee on Human Rights has put forward two approaches to defining deprivation of liberty, which would reduce the number of persons the scheme would apply to. I think there is merit in considering both these elements in the proposed section 4ZA:

3.6 The ‘causative approach’, based on the Ferreira judgement, is already included in section 4ZA.4, but only in cases where the alleged deprivation of liberty arises due to medical treatment. This could be extended to cover persons in other settings whose confinement is a consequence of their condition, rather than imposed by the care provider.

3.7 The ‘valid consent approach’ would exclude from deprivation of liberty those arrangements for which the relevant person has expressed consent, albeit incapacitated consent, where there is no coercion, outside objection or actual restraint (verbal, physical or medical).

4. The role of providers in assessing and justifying deprivation of liberty

4.1 Despite the later amendments to the role of the Care Home Managers it is my view that the proposed scheme still puts too much responsibility on providers, who will have a conflict of interests in holding that responsibility. This particularly applies to private providers of both residential and hospital care. Small care home run by sole traders are particularly ill-equipped to take on that role for a number of reasons:

a. They are dependent on the income and have a vested interest in confirming existing care arrangements and are therefore not independent or objective.

b. Past experience of their application of DoLS shows a poor understanding of the principles of the MCA and the concept of deprivation of liberty.

c. In my experience care homes are motivated by the protection imperative are and risk averse. They frequently identify a lack of capacity and determine best interests solely on the basis that the relevant person exposes themselves to risk of harm.

d. Greater scrutiny of the care home’s assessment of risk of harm and that arrangements are necessary and proportionate will be dependent on the care homes identifying the relevant person’s objection to arrangements. Care homes again are ill-equipped to identify anything but overt requests or attempts to leave as an objection.

e. The Impact Assessment estimates the training requirement for care home managers at half a day, which given the above concerns is hugely inadequate.

5. Role of Approved Mental Capacity Professionals

5.1 The AMCP provides for a greater level of independent professional scrutiny of care arrangements in cases where the relevant person objects to such care arrangements. This relies on care home managers to identify objections and refer to an AMCP. A wider range of triggers for AMCP involvement is needed, for example request by family or friends, any care arrangements involving medical or significant physical restraint or where the relevant person has no external visitors.

6. Advocacy and Appropriate Person

6.1 All persons subject to an authorised deprivation of liberty must be entitled to have a appropriate person appointed and the support of an advocate.

January 2019


Prepared 15th January 2019