Mental Capacity (Amendment) Bill [HL]



Hywel Dda University Health Board provides healthcare services to a total population of around 384,000 throughout Carmarthenshire, Ceredigion and Pembrokeshire.  It provides Acute, Primary, Community, Mental Health and Learning Disabilities services via General and Community Hospitals, Health Centres, GP's, Dentists, Pharmacists and Optometrists and other sites. The Health Board has its own Deprivation of Liberty Safeguards (DoLS) team of Best Interest Assessors and manages over 600 DoLS referrals per year.

We are submitting this evidence to the committee as we believe it is essential to ensure the MCAA Bill provides the necessary protections as a replacement for DoLS.

Executive summary

· We are concerned that the MCAA as published does not offer sufficient protection to people who lack capacity and who are deprived of their liberty.

· Although amendments put forward for the MCAA Bill have strengthened some of its provisions we remain concerned that too much detail is being left to the as yet unpublished Code of Practice.

· The LPS will inherit the "MHA/MCA interface" issues that currently beset DoLS.

· The range of powers and responsibilities invested in Care Home Managers risks a conflict of interest and would be unsustainable.

· We are concerned that the Independent Care Home Sector appears to be unaware of the potential and substantial impact this new Bill will impose on them.

· The Financial Impact Assessment for the LPS fails to take account of the true costs of implementing the new scheme.

· The proposed definition of deprivation of liberty would risk many being left without adequate protection of their human rights.

Our views

1) We believe that one of the strengths of the current DoLS process is the involvement of a Best Interest Assessor in all assessments. Their knowledge and experience enables them to identify and resolve problems that may otherwise go unnoticed. We are concerned that the Approved Mental Capacity Professional (AMCP) role is too limited in the MCAA and that consideration should be given to there being additional triggers to their involvement. In particular there should be provision that an AMCP can be appointed at the request of anyone involved and who has concerns for the cared for person.

2) Within Hywel Dda University Health Board approximately one third of our DoLS assessments are undertaken within mental health inpatient units. We are acutely aware of the difficulties often encountered due to the interface issues between the MCA/DoLS and the Mental Health Act (MHA). Neither the MCAA nor the recently published Wessley review of the MHA appear to properly address these issues. Unless the MCAA can be amended to clarify the use of the MCA and MHA for mental health inpatients the current unsatisfactory diversion of resources in dealing with disputes around the interface, and possible poor outcomes for patients, will continue.

3) Currently in the MCAA ascertaining the wishes and feelings of the cared for person is only part of the broader duty to consult with others. We believe that there should be a distinct duty to consult with the cared for person to ascertain their wishes and feelings, bringing the LPS into line with the general provisions of the MCA.

4) The MCAA places considerable duties and responsibilities on Care Home Managers that risk both a conflict of interest with the rights of the cared for person and an unsustainable burden on the care sector which is already struggling with recruitment and retention of adequately skilled and experienced managers. We would like to see an amendment that maintains the rights of the cared for person through independent scrutiny and assessment by qualified and experienced assessors and does not impose additional burdens on this already under resourced Sector.

5) Much of the detail as to how the LPS will be implemented is being left to a new and as yet unpublished MCA Code of Practice. We are concerned that without the statutory power of the Act this will lead to wide variations in the practise of LPS. DoLS practise, as a result of inadequate parliamentary scrutiny and poorly worded legislation, is now largely driven by case law. To avoid a repeat of this we believe that the MCAA should be given adequate Parliamentary time to ensure it receives proper scrutiny in order that the final Bill is fit for purpose.

6) The Financial Impact Assessment for LPS seriously underestimates the costs of implementing the scheme as proposed. For example, as a Supervisory Body Hywel Dda University Health Board alone spends over £35,000 per year on Medical Assessors to provide assessments of mental health. This will continue to be a requirement under LPS yet no provision has been made for this funding in the impact assessment. Without adequate funding the new scheme will continue to present the financial pressures currently posed by DoLS.

7) The use of conditions added to DoLS authorisations has been highly effective where used appropriately. The statutory power of conditions is absent from the proposed LPS scheme. We believe that the duty to comply with conditions should be included within the Bill.

8) The proposed amendment to the MCA S4, "4ZA, Meaning of deprivation of liberty" as a replacement for the "acid test" derived from the Supreme Court ruling in the "Cheshire West" case does not offer adequate protection to the rights of patients lacking capacity to consent to their care and treatment. Specifically, it would exclude the vast majority of general hospital inpatients admitted for medical treatment of physical illness. We believe s.4ZA (4) (a) and (b) effectively represent a significant and worrying extension to the more nuanced and specific circumstances which were covered in the Ferreira judgment. As a Supervisory Body covering acute and community hospitals dealing with over 600 DoLS referrals per year Hywel Dda University Health Board has had many complex cases deriving from medical inpatients receiving "the same (or materially the same) arrangements that would be put in place for any person receiving that treatment" and who the amendment would discount as being deprived of their liberty. A number of such cases have been referred to the Court of Protection. This amendment risks subjecting the cared for person to unintended medical paternalism without a right of appeal, exactly the situation that DoLS was enacted to prevent.

Secondly, subsection 3 (b) seems a strange inclusion in that a right to leave a place temporarily seems especially relevant to questions of whether a person is objectively deprived of their liberty. Whilst we appreciate this temporary right to leave is linked to the absence of continuous supervision (subsection 3 (a)), we feel its inclusion is more likely to confuse than assist and could lead to the idea that an ability to temporarily leave a place means no deprivation of liberty can occur.

We hope that the above submission is useful.

January 2019


Prepared 16th January 2019