Mental Capacity (Amendment) Bill [HL]

Written evidence submitted by Sara-Jayne Williams, Mental Capacity Act Coordinator for Bedford Borough Council (MCAB33)

Bedford Borough Council is a unitary authority; it is responsible for issuing standard authorisations under Schedule A1 to the Mental Capacity Act (MCA) 2005. Additionally, Bedford Borough has filed a number of applications to the Court of Protection using the streamlined procedure pursuant to Re X and Others (Deprivation of Liberty) Number 1 (2014) EWCOP 25 and Number 2 (2014) EWCOP 37.

As the Mental Capacity Act Coordinator for Bedford Borough Council, I have been responsible for the development and continued oversight/running of the DoLS service. I play a key role in facilitating group supervision to Best Interests Assessors and advising senior management, including signatories of DoLS related activity. I support with the annual DH returns. I deliver basic training on the Deprivation of Liberty Safeguards to providers and frontline practitioners. I also submitted a response, on behalf of the Council, to the Law Commissions consultation paper reforming the Deprivation of Liberty Safeguards in 2015. I therefore consider myself fully able to comment on the Mental Capacity Amendment Bill; my observations will focus on the following:

1. Wishes and views of the person

2. Fluctuating capacity/Advance Consent

3. Advocacy (IMCA)

4. Appropriate Person

5. Care home managers

6. Private hospitals

7. Professional assessments

8. Approved Mental Capacity Professional (AMCP)

9. Conditions

10. Renewals

11. 16 to 17 year olds

12. Funding

13. Code of Practice

14. Inadequate consultation

1. Wishes and beliefs of the person

1.1 The original Bill omitted the views and wishes of the person, but was later amended by the House of Lords to include the requirement to consult with and have regard to the cared for person’s wishes and feelings when making a determination as to whether the arrangements are necessary and proportionate.

1.2 It is my view that there should be a separate assessment detailing the person’s wishes and feelings (current and past) as this will ensure an additional mechanism to protect the cared for person’s article 8 rights (European Convention of Human Rights (ECHR). There should also be an automatic requirement to refer for advocacy support where the cared for person is objecting to the care arrangements and/or accommodation.

2. Fluctuating capacity/Advance Consent

2.1 The Law Commission’s draft Bill made reference to the concept of fluctuating capacity and advance consent. Neither of these is referenced in the Bill and it is my view that further clarity is required to assist with cases where a person has fluctuating capacity.

2.2 It is my opinion that it is not acceptable for the Bill to disregard fluctuating capacity, as this is likely to expose health and social care professionals and those authorising a deprivation of liberty to significant legal risk. The Bill should provide explicitly for fluctuating capacity.

3. Advocacy (Independent Mental Capacity Advocate – IMCA)

3.1 The Law Commission’s draft bill recommended that advocacy is provided automatically and on an opt-out rather than an opt-in scheme should be in place.

3.2 Depriving a person of liberty is a serious decision; it is my view that the Bill should make advocacy an automatic right, especially where there is no-one to consult with at the point of pre-authorisation review. Additionally, the decision to appoint an IMCA should be extended to the Responsible Body and Approved Mental Capacity Professional, and this right should be available at any point where an authorisation is active.

3.3 The Bill makes reference to not needing to appoint an IMCA where it is not considered to be in the cared for person’s best interests. Where a decision is made not to appoint an IMCA in these circumstances, there should be a clear written record as to why this is justifiable. The Code of Practice should also provide examples as to when the appointment of an IMCA may not be in the cared for person’s best interests.

4. Appropriate person

4.1 Under Schedule A1 and the streamlined Re X procedure, a representative must be appointed to support the relevant person in all matters relating to the deprivation of liberty. The Bill replaces relevant person representative and rule 1.2 representative with the appointment of an appropriate person.

4.2 The Bill does not stipulate what criteria must be met when appointing an appropriate person, nor does it document the roles and responsibilities associated with this role. It is my view that this needs to be explicit in either the Bill or the Code of Practice so as to ensure that the cared for person is supported to access their right to challenge the authorisation under S.21ZA or to request a review, as an example.

5. Care Home managers

5.1 It is important that the LPS are implemented in a way that minimises intrusion into private and family life. This is imperative so as to balance the right to liberty arising under article 5 of ECHR and the rights of individuals and their families to respect for their private and family life arising under article 8 of ECHR.

5.2 Whilst the Bill has been amended to limit the responsibilities of care home staff assessing under the safeguards, it is my view that it should be the duty of the Responsible Body to decide who should undertake assessments and when an assessment should be referred to an AMCP. This is because there is high turnover of staff in care home environments, with varying levels of knowledge and experience amongst staff. There is also an issue with conflict of interest.

5.3 Decisions made by Responsible Bodies should be based on the circumstances of the cared for person and they should be responsible for ascertaining which staff it considers appropriate to undertake assessments. It would be beneficial to consider adopting the model underpinning S42 enquiries under the Care Act 2014 (provider led and local authority led enquiries).

6. Private hospitals

6.1 The Law Commission’s draft bill was designed to establish more robust links between the commissioning of care arrangements and consideration of whether deprivation of liberty is justified. This means that the body responsible for arranging the care or treatment should be responsible for considering requests for authorisations, commissioning the required assessments and then giving the authorisation.

6.2 The Bill defines a private hospital as Responsible Body. It is unclear why a private hospital is treated differently to a care home. It is my view that private hospitals should be regarded as the same as a care home, with the Responsible Body being the commissioning authority.

7. Professional assessments

7.1 The Bill makes no condition for professional assessments to be used for the purposes of the LPS. There is a need to ensure professionals are equipped with the correct skill and knowledge base. Qualified, registered practitioners should undertake assessments relating to mental disorder, capacity and assessments to identify whether a person is deprived of liberty and if the arrangements are necessary and proportionate to the likelihood and severity of harm for the cared for person.

7.2 There is a need for the Bill and/or associated Code of Practice to be explicit in terms of what professional assessments can be used and under what circumstances.

8. Approved Mental Capacity Professional (AMCP)

8.1 Currently all assessments completed under Schedule A1 to the MCA are undertaken by independent Best Interests Assessors (BIA). The Bill identifies that a pre-authorisation review must be undertaken by an AMCP where a person is objecting to the care arrangements and/or accommodation.

8.2 It is my view that the role of the AMCP should be broadened and there should be additional triggers to instigate oversight by an AMCP. These should include:

· Where the person is subject to high levels of restrictions, including 1:1 supervision;

· Where the arrangements interfere with article 8 rights, for example, covert medication and supervised/restricted contact;

· Where family are objecting to the arrangements/accommodation, and;

· Where a person is privately funding the care arrangements and there has been no prior involvement by the Responsible Body.

8.3 The Bill places a responsibility on the Local Authority (LA) to make arrangements for the supply and registration of AMCPs. This does not take into account that a Clinical Commissioning Group (CCG) or a NHS Trust is defined as a Responsible Body and the arrangements that they need to make regarding access to an AMCP. This will create financial and resource pressures on the LA, as the CCG and NHS Trust are likely to approach the host LA where they do not have access to suitably qualified practitioners. This is likely to result in assessments being delayed (and consequently unlawful deprivation) due to increased demands as the Bill broadens the safeguards to include people in care homes and community settings.

8.4 Furthermore, the Bill does not make reference to how existing BIAs will transition over to the role of AMCP. The Bill needs to make these arrangements explicit or reference that this will be dealt with through the regulations.

9. Conditions

9.1 The Bill makes no reference to conditions that can be attached to an authorisation. Under Schedule A1, conditions are attached to a standard authorisation where there are mechanisms to either lessen or avoid a person being deprived of liberty.

9.2 Bedford Borough Council issued 1054 standard authorisations in 2017/18, 17.4% of the authorisations had a condition attached. It is my view that the Bill should include the ability to impose conditions, as the Bill should come from a rights based perspective considering how liberty can be promoted.

10. Renewals

10.1 The Bill allows a first renewal for up to twelve months or less and then three years or less, on any subsequent renewal. There is a risk that a person’s circumstances may change where a three year authorisation is issued and the care home may not request a review during this period.

10.2 To ensure additional safeguards, it is my view that where an authorisation is granted for three years, there should be a condition that care homes provide annual written evidence confirming the following:

· That the authorisation conditions continue to be met;

· That there has been no change during the authorisation period, and

· Both the cared for person and appropriate person/IMCA have been consulted and no objection is noted.

10.3 Where one of the above criteria is not met, there should be an automatic trigger to review the authorisation to ensure conditions are met and the arrangements continue to be necessary and proportionate.

11. 16-17 years old

11.1 The Bill has been amended to include young persons aged 16 to 17 years of age and this is appropriate given the majority of the Mental Capacity Act 2005 applies to all persons aged 16 years and over.

11.2 Whilst it is noted the issue of young people and deprivation is currently being considered by the Supreme Court in the matter of D (a child), additional safeguards should be available where objection is noted by either the cared for person or a person with parental responsibility (PR).

11.3 If the cared for person or PR objects to restrictions this should be considered by the Court of Protection, prior to an authorisation being issued or at any point where an authorisation is active and objection is expressed. There is a need to ensure safeguards are consistent regardless of age and that young people are not discriminated against and have reduced rights than under the Children Act.

12. Funding arrangements

12.1 The impact assessment dated 29/06/2018 is based on activity from 2016/17. It is my opinion that it does not adequately take into account key issues required to fully and effectively implement the safeguards. For example, the impact assessment underestimates issues relating to training, appointment of IMCAs, community DoLS and objection cases.

12.2 Given the information is out of date, it is my view the impact assessment should be reviewed, this should be based on activity from 2017/18 and undertaken in consultation with key stakeholders.

13. Code of Practice

13.1 The Bill makes reference to a Code of Practice, however it is difficult to comment on how this will support in the implementation of LPS, as a draft version is not available to scrutinise and comment on.

13.2 It is my view that the Code of Practice should be co-produced with key stakeholders and open to a period of consultation.

14. Inadequate consultation

14.1 It is widely accepted that the current law relating to deprivation of liberty is not fit for purpose and the consensus is that reform is required. Whilst there are positive aspects to the Bill, there are concerns that government are pushing the Bill through parliament too hastily for proper detailed consideration and consultation. This view is echoed by both Lords, MPs and frontline practitioners involved in DoLS related activity.

14.2 For the Bill to be a success, co-production is imperative. We should be using this opportunity to get it right from the onset and to ensure the safeguards are achievable.

14.3 The Bill does not address how Responsible Bodies are supposed to address the issue of DoLS backlogs in England and Wales, or comment on the transition period from DoLS to LPS. This needs to be explicit in the regulations otherwise continued pressures will exist and the revised process is doomed to fail.

Sara-Jayne Williams

Mental Capacity Act Coordinator

Bedford Borough Council

January 2019


Prepared 15th January 2019