Mental Capacity (Amendment) Bill [HL]

Written evidence submitted by Dan Baker, Mental Capacity Act and Deprivation of Liberty Safeguards Lead Officer, Central Bedfordshire Council (MCAB41)

Firstly, thank you for the opportunity to contribute to the consultation, opened by the House of Commons Public Bill Committee, on the Mental Capacity (Amendment)Bill which is currently going through parliamentary processes.

As a Mental Capacity Act and Deprivation of Liberty Safeguards Lead Officer, for a Local Authority (Central Bedfordshire Council), I know only too well how urgent new legislation is required, nevertheless, I am also acutely aware of how important it is to get this right.

This is a huge opportunity to devise a simpler and more effective system, of assessment and safeguards, for people whom have care and support arrangements that amount to a deprivation of their liberty. The Mental Capacity Act 2005 has rightly been recognised as "a visionary piece of legislation for its time" (House of Lords, 2014) [1] and, having specialised in this area for a number of years, I am extremely excited by an opportunity to build on the empowering ethos of the act -

‘…enabling and supportive of people who lack capacity, not restricting or controlling of their lives.’

(Department of Constitutional Affairs, 2007)

Despite such optimism, however, there was massive disappointment across the sector about the departure the government took, in some aspects of the Bill, when compared with the Law Commission’s proposals. These concerns and criticisms have been well documented and, thankfully, many have been addressed by the House of Lords, and the Government’s acceptance of amendments thus far.

That said, I would like to highlight a point of strong concern which I believe represents a massive missed opportunity which could be easily amended. I would summarise this as follows:

· Embracing the potential to dovetail the LPS assessment process into current MCA 2005 requirements / current health social care processes; and,

· Enshrining in law the importance of professional assessments, when it comes to Human Rights;

The Law Commission intended to make ‘use where possible of existing mechanisms and procedures provided by health and social care and mental capacity legislation’ (Law Commission proposal, para 1.21) [2] and yet the current Bill falls far short of this in my opinion.

The Law Commission intended to simplify the system by integrating it into existing processes:

"1.28 Our intention in recommending this is to give prominence to issues of the person’s human rights, and of whether a deprivation of their liberty is necessary and proportionate, at the stage at which arrangements are being devised. We want decision-makers to survey the range of possible options whilst they are all still options, before deciding in favour of an option that gives rise to a deprivation of liberty. An authorisation under the Liberty Protection Safeguards would not be an after the event exercise, or a rubber stamp of a decision already taken. The need to obtain it imposes discipline on the care and treatment planning process itself."

As referenced above, the Law Commission pragmatically wanted matters of Deprivation of Liberty, and Human Rights more generally, to be considered ‘…at the stage at which arrangements are being devised’ and yet, with the Bill as it currently stands, there remains potential for such vital considerations to be separated from the initial decision-making process; where assessments and justification of deprivation could come after the care has been decided on/arranged. Surely, the consideration of Human Rights – and justification of interference - must be intrinsically part of any initial best interests decision making process undertaken by those commissioning the care from the outset.

At present, when health and social care professionals are making decisions on behalf of an incapacitated person, they are already required to make the decision ‘in the person’s best interests’ through applying section 4 of the Mental Capacity Act. [3] This already includes, amongst other considerations, taking account of ‘all the relevant circumstances’ (s4 [2]), and, in particular, ‘the person’s past and present wishes and feelings…’[and] ‘other factors that he would be likely to consider if he were able to do so.’ In my opinion, this is akin to saying that a person’s human rights should be considered as part of the best interests decision-making process; since any interference with their human rights would surely be something the person would ‘likely to consider if he were able to do so.’

In this respect, I would advocate for Section 4 of the current MCA 2005 best interest ‘checklist’ being amended to incorporate the requirement to map-out any impact on human rights and provide sufficient justification (i.e. in terms of article 5 right: consider if the proposed restrictions / arrangements amount to a deprivation of the person’s liberty, assess and provide justifications of the necessity and proportionality of any proposed interference, and, explicitly, record why any lesser restrictive option is not in the person’s best interests). It is worth noting that the Mental Capacity Assessment requirement would have already been met, since the professional making the arrangements would have already needed to assess their mental capacity.

This, in my view, is relatively simply to incorporate and would achieve the Law Commission’s intention of ‘bringing human rights considerations formally into the initial decision-making process…’ (para 1.31). [4] I believe the current Bill does not require this advanced human rights approach and, therefore, consideration of human rights will often come too late in the care planning process, as well as result in duplication of work. This, in my opinion, should be in statue and not the code of practice.

In summary, I believe the legislation should:

Remove all mention of care home managers arranging the assessments and revert back to the Law Commission’s sensible proposals of this being for the Responsible Bodies. Moreover, these considerations and justification should be at the time the care arrangements are being devised. I would add, that such professionals completing these assessments should, ideally, be registered professionals reflecting the seriousness and complexity of such matters;

That the current MCA 2005 best interests checklist (section 4) is amended to incorporate the requirements of considering, and justifying, the impact on a person’s Human Rights when a best interest decision is being made – a human rights impact assessment so to speak. This could include requirements for best interests decision-makers to assess and justify any interferences in terms of necessary and proportionate to the likelihood of harm and the seriousness of such harm, the further away from a person’s expressed will and preferences the greater the justification required, and, explicitly state why any lesser restrictive alternatives are not in the person’s best interests.

Thank you for your consideration of the above. I would be more than happy to be contacted again for any further views or clarification.

Dan Baker

Mental Capacity Act and Deprivation of Liberty Safeguards Lead Officer

Central Bedfordshire Council

January 2019


Prepared 16th January 2019