Mental Capacity (Amendment) Bill [HL]

Written evidence submitted by Professor Rosie Harding, Birmingham Law School, University of Birmingham [1] (MCAB47)

Introduction     

The Deprivation of Liberty Safeguards (DoLS) are in urgent need of reform. However, in reforming the system it is imperative that any streamlining of the process continues to fully protect disabled people’s rights.

The Mental Capacity (Amendment) Bill currently before Parliament has been subject to extensive critique from mental capacity professionals, legal professionals and academic commentators throughout its passage in the House of Lords. I have commented publically on the development of the current Bill on my research blog at www.legalcapacity.org.uk. [1] Commentators on the Bill have highlighted problems in a wide range of areas, some of which have been partially addressed through amendment in the Lords. Further significant amendment is still required in order to ensure that the new DoLS system is both lawful and workable.

It would be impossible to cover all of the problems with this bill in one submission. I therefore concentrate my written evidence on issues in the Bill that relate specifically to my own research expertise, and findings from my empirical and socio-legal research in this area. The focus of my research in areas relating to this Bill includes the regulation of dementia care (Harding, 2012, 2017b, 2017c; Harding & Peel, 2013; Peel & Harding, 2014; Peel, Taylor, & Harding, 2016; Thorogood et al., 2018), capacity law (Harding, 2015, 2017a, 2018) and everyday experiences of mental capacity law and supported decision-making in practice (Harding & Peel, 2018; Harding & Taşcıoğlu, 2017, 2018).

In this evidence, I focus on five key issues:

1) Placing P at the centre of the DoLS process and framework;

2) The absence of wider reforms proposed by the Law Commission in this Bill;

3) Lawfulness and compliance with Article 5 ECHR;

4) Conflicts of Interest; and

5) Defining ‘Deprivation of Liberty’.

As I will be focusing on these issues, I will not engage in detailed discussion of the issues arising from the extension of DoLS to 16 and 17 year olds, though I agree with many of the points raised by members during the 2nd reading debate. The interface of the MCA and Mental Health Acts following the Wessely review is also an important issue, and one that has been raised by many MPs. I do not engage in analysis of this issue here, but I would align myself with the position that the interface between the two mental capacity and mental health law needs careful consideration. If, not, there is a danger that the MCA and DoLS frameworks will need to be significantly revised again when any reforms to mental health law that follow from the Wessely Review are put before Parliament. I would also support proposals from commentators that: strengthen access to independent advocacy, protect rights to object to arrangements for care and treatment that include a deprivation of liberty, and increase the proportion of arrangements that are given pre-authorisation review by an Approved Mental Capacity Professional (AMCP). Finally, several commentators have critiqued the current balance between the content of the Bill and the detail that will appear in the Code of Practice or in secondary legislation. I am sympathetic to this concern, especially the need to ensure that all key legal rights and duties appear on the face of the Bill, rather than in the Code of Practice.

Placing P at the Centre of the Process     

The person who is to be deprived of their liberty (P) must be at the heart of the new scheme. Adding P as one of the people who must be consulted under Schedule AA1, Paragraph 20 about the arrangements was a positive step forward from the bill as introduced. Further justification needs to be given, however, to including P in the pre-authorisation review element of the new process, and in instances where the care provider is responsible for consultation.

If the pre-authorisation review is conducted by an AMCP under paragraph 22, then the AMCP must meet with P "if it appears…appropriate and practical to do so". It has been clarified that the pre-authorisation review will always be undertaken by someone who does not have responsibility for P’s day to day care and treatment, and that it will not be a person who has a prescribed connection with a care home. However, where the review is not undertaken by an AMCP, there is no prospect of the reviewer meeting with P. Whilst this is no doubt intended to reduce the bureaucracy and costs of the process, there is a real possibility that P’s wishes and feeling about the arrangements may not be fully accessible to the person conducting the review.

The Law Commission’s (2017) report took a different approach to this issue than has been taken in the current Bill. Under the Law Commission’s proposals the AMCP would have been required to meet with P "unless it is not practicable or appropriate to do so" (Law Commission, 2017, pp. 104, 212). The difference here is subtle, but it means that the whereas in the Law Commission proposals the default position would be to meet P, under the Bill, the default position is reversed, with the AMCP having to find reasons why it both appropriate and practicable to do so.

Several commentators on the Bill have noted that care home managers should not be responsible for undertaking consultation with the cared for person. I would extend this concern to also include consultation with P’s informal carers, and to include other care providers, particularly independent hospitals, but similar issues also apply to NHS providers and local authorities who provide care services. The foundation for this concern is that P and their family or carers may not feel able to voice their concerns to the person responsible for providing care.

In my research with carers of people with dementia (Harding, 2017b), I found that people with dementia and their family carers were often reticent to speak up about concerns or make complaints about poor care to those care providers. The main reason participants in my research gave for this reticence was that the person in receipt of the care "didn’t want to make a fuss", and that carers were afraid that if they made a complaint the care provider would "take it out on" the cared for person. There was also evidence in my research of poor care and victimisation following on from complaints about care provision. These kinds of concerns highlight just how important it is that both consultation and pre-authorisation review is undertaken independently of the provider responsible for the arrangements, and that P, and P’s family carers always have the opportunity to give their views to someone independent of the arrangements for care and treatment.

Wider reform of the Mental Capacity Act     

The Law Commission proposed two important further changes to the MCA as a whole that would have significantly improved the place of P in the DoLS process: amendments to s. 4 of the MCA to give P’s wishes and feelings priority in all best interests determinations; and a regulation-making power to establish a supported decision-making scheme.

In the Government’s response to the report, the recommendation to amend s. 4 of the MCA was accepted, but the recommendation to enact a power to establish a supported decision-making scheme was deemed to require further evidence. The failure to include either of these reforms in this Mental Capacity (Amendment) Bill represents a missed opportunity to make a significant difference to the lives of intellectually disabled people in England and Wales.

In our recent research into how supported decision-making happens in practice (Harding & Taşcıoğlu, 2017, 2018, 2019), [2] we found that the MCA had embedded a culture of everyday decision-making support into frontline care services. Intellectually disabled people, including those with quite profound impairments and limited or no communication are often facilitated to make choices about everyday activities, food, and clothing. For those with no verbal communication, multisensory approaches to communication were often used to good effect to facilitate everyday choices. Some disabled people are also well supported by family members and professionals to make life choices about things like education and voluntary work. Paradoxically, however, as decisions became more complex, we found that intellectually disabled people received less support with decision-making. Instead of providing the extra support disabled people reported needing and wanting, many care and support professionals were more likely to default to using the best interests approach. This preference for using the best interests framework in care practice suggests that whilst supported decision-making is mandated by Principle 2 of the MCA, this is not as well embedded in practice as it could or should be.

Changing the definition of best interests to give priority to P’s wishes and feelings would bring the statutory definition into line with the Supreme Court’s interpretation of best interests in Aintree University Hospitals NHS Foundation Trust v James. [3] In that case, Lady Hale (who was, of course, the architect of the MCA when she was a Commissioner at the Law Commission of England and Wales) said "the purpose of the best interests test is to consider matters from the patient’s point of view." [4]

This development in understandings of best interests has already made a difference in practice in the Court of Protection, particularly in recent jurisprudence on the withdrawal of clinically assisted hydration and nutrition (Harding, 2018). Reforming the MCA to reflect this definition on the face of the statute would assist in bring frontline care and support practice into line with legal understandings. It would also help to ensure that P’s will and preferences are given due weight in all cases, therefore bringing English law closer into compliance with Article 12 of the UN Convention on the Rights of Persons with Disabilities (Harding, 2015).

Whilst noting that the Government is not yet persuaded that a supported decision-making scheme is the most appropriate way to facilitate wider support for decision-making, the failure to include a delegated power to introduce one in this bill is a missed opportunity for positive reform. The previously standard legal response to intellectual disability (full or partial guardianship which removes de jure legal capacity) has been challenged in the last ten to fifteen years, as a result of disability activism, legal scholarship and the entry into force of the UN Convention on the Rights of Persons with Disabilities (CRPD). Of particular note is Article 12 CRPD, which requires States parties to "recognise that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life". [5]

This controversial provision (Dhanda, 2006-2007), and its interpretation and implementation, has generated a significant academic debate (Arstein-Kerslake & Flynn, 2016, 2017; De Bhailis & Flynn, 2017; Harding, 2015; Martin et al., 2016; Quinn, 2010).. Some scholars consider that the Committee on the Rights of Persons with Disabilities (CommitteeRPD) have gone further in their interpretation than can be found in the text of the Convention (Martin, 2015). Others, persuaded by the basis of the CommitteeRPD’s interpretation within the CRPD, seek to offer viable legal and jurisprudential solutions to the challenge posed by Article 12 (Flynn & Arstein-Kerslake, 2014; Gooding, 2013; Stainton, 2016).

Across a range of jurisdictions worldwide there have been significant moves towards CRPD compliance. Several legal systems have introduced reforms that aim to recognise the rights of all disabled people to enjoy legal capacity on an equal basis with others, and to support in making legally relevant decisions. Some of these provisions (notably those in Sweden and in British Columbia, Canada) pre-date the CRPD; others (Victoria, Australia; Peru; Ireland) have been developed in response to the provisions of CRPD.

There is not space here to go into depth on the detail of these schemes, but all have in common a desire to respond differently to the relationship between functional (mental) capacity and the right to legal capacity (Harding, 2017d). Formal supported decision-making schemes have the potential to transform intellectually disabled people’s lives, enabling them to draw on trusted support to make decisions that would otherwise be taken on their behalf under substituted decision making frameworks like best interests. Most importantly for the purposes of the DoLS, a formalised supported decision-making scheme would hold the potential to significantly increase the number of people who could consent to the arrangements for their care and treatment, and therefore to fall outside the need for the formal Liberty Protection Safeguards in order to protect their Article 5 rights.

Compliance with Article 5 ECHR     

The purpose of the DoLS, and the proposed new Liberty Protection Safeguards (LPS) is to protect the rights that intellectually disabled people have under Article 5 of the European Convention on Human Rights (ECHR). A recent admissibility decision from the European Court of Human Rights (ECtHR) found the current DoLS system under MCA Schedule A1 to be compliant with Article 5 ECHR. [6]

For the new LPS scheme to also be compliant with Article 5 ECHR, it must share the basic foundations of the current DoLS and align with ECtHR jurisprudence on the interpretation of Article 5 generally, and Article 5(1)(e) specifically. To be lawful, deprivation of liberty under Article 5(1)(e) must be in accordance with a procedure required by law. The legal framework must also contain fair and proper procedures for the deprivation of liberty. The deprivation of liberty must be necessary in the circumstances, and is only justified when other, less restrictive, options have been considered, and found to be insufficient to protect the individual or the public. ECtHR jurisprudence also sets out the different assessments that are required to evidence that a person is of unsound mind. The main elements of the ECtHR jurisprudence appear to be met by the authorisation conditions in the proposed new LPS.

The proposed renewal and review periods in the current bill are less obviously compliant with Article 5 rights. Where the ECtHR has considered periods of review for detention under Article 5(1)(e), "intervals between reviews of less than a year have usually been considered acceptable, while longer intervals have not been considered ‘reasonable’ for the purposes of Article 5(4)." [7] Whilst these periods have been discussed by the ECtHR in the context of mental health law, rather than learning disability, brain injury, dementia or other intellectual disability, it can be expected that similar time periods would be considered reasonable by the ECtHR in cases where a person who lacks capacity or their family members object to the arrangements under LPS. The proposal for renewal periods lasting 3 years in the Bill therefore raises significant concerns about compliance with the Article 5(4). This is particularly so when considered alongside recommendations in the Wessely review of the Mental Health Act has suggested reducing the period between reviews in the Mental Health Acts to a maximum of 12 months in all circumstances.

Of further concern in respect of the renewal and review process is that care home managers would have additional responsibilities to conduct reviews in the Bill that they were not given in the Law Commission proposals. Rights under Article 5(4) are to speedy review by a court or quasi-judicial body. It is not clear to what extent a review by the care home manager would fulfil this requirement. Renewals under the process in Schedule AA1, Paragraph 32 also delegate most of the workload of review to care home managers. Reviews and renewals which rely on assessments undertaken by care home managers further raise concerns about conflicts of interest between the care provider and the cared for person.

Conflicts of Interest     

The proposal that care home managers take on responsibility for collating paperwork relating to authorisation of and consultation for LPS have been widely critiqued during the passage of the Bill. The enhanced role for care home managers in the Bill was not considered by the Law Commission, and has therefore not had the benefit of careful scrutiny and wide consultation. The specific concerns relating to authorisation have been only partially addressed by amendments that insert limitations on who may undertake assessments, and who may undertake the pre-authorisation review.

Potential for conflict of interest remains in the Bill in relation to independent hospitals at the authorisation stage. The government amendment (amendment 9) introducing a requirement for an AMCP to undertake the pre-authorisation review goes some way towards addressing this issue. Further consideration should also be given to ensuring the independence of the assessments upon which the authorisation rests.

As with the authorisation process, the enhanced role for care home managers in the review and renewal process was not included in the Law Commission consultation or report. Similar conflicts of interest arise at review and renewal as arise at the authorisation stage, given the ongoing financial interests that a care home manager and the manager of an independent hospital would have to provide their services. The conflict of interest here may go further than it does at the authorisation stage, because it is not at all clear how review and renewal being conducted by the care home manager or independent hospital manager would fit with the Article 5(4) right to speedy determination by a court.

Defining ‘Deprivation of Liberty’     

The final issue I consider in this submission is the potential for a definition of ‘deprivation of liberty’. The argument for a new definition rests on a view that the Supreme Court’s approach in Cheshire West is too wide, particularly as it relates to people living in their own homes, with support, and in the community. Some commentators suggest that the Supreme Court’s definition (P is under continuous supervision and control, is not free to leave and lacks capacity to consent to the arrangements) goes further than the Article 5 jurisprudence.

The starting point for consideration of a deprivation of liberty under Article 5(1)(e) is the person’s "concrete situation" and "account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measures in question." [8]

The components of Lady Hale’s ‘acid test’ for a deprivation of liberty from Cheshire West can all be traced back to ECtHR jurisprudence. The key definitional elements, that the person is under "continuous supervision and control" and "not free to leave" elements, are drawn from a long line of ECtHR jurisprudence. [9] For the purposes of the DoLS (and the new LPS), a third element is important: that the person lacks the capacity to consent to the deprivation of their liberty. This finds its basis in HL v United Kingdom, [10] the case which gave rise to the DoLS framework.

The proposed New Clause 1, which would insert s. 4ZA into the MCA, appears to define deprivation of liberty in a narrower sense than the definition in ECtHR jurisprudence at clause (3). In Guzzardi v Italy a deprivation of liberty was found by the ECtHR despite the person being able to leave the ordinary place of their detention under supervision. Similarly, in Stanev v Bulgaria, the ECtHR held that a person can also be found to be detained under Article 5(1)(e) where "during a period when he was in an open hospital ward with regular unescorted access to the unsecured hospital grounds and the possibility of unescorted leave outside the hospital." [11] Finally, the definition in the amendment is negatively drawn, and therefore potentially confusing. A positive definition would arguably be easier for those working with the MCA to understand and implement.

Given that the concept of deprivation of liberty is founded on the jurisprudence of the ECtHR, seeking to provide a coherent definition on the face of the bill will be a challenge to drafters. This is because the definition must be able to evolve along with ECtHR interpretation of Article 5 in line with the ‘living instrument’ doctrine of the ECHR. There is a danger that a very specific definition might date quickly, as well as giving rise to human rights challenges.

Many of the critiques of the scope of the current definition of deprivation of liberty actually hinge on the definition of capacity in the MCA, the use of the functional approach, and the limited way in which decision-making support has developed in MCA practice. If a more nuanced approach were to be taken to support for decision-making, then it may be possible to support more people (particularly those who are being supported to live independently in the community) to consent to the arrangements for their care and treatment. The most obvious way to do this would be by implementing the wider amendments proposed by the Law Commission (prioritising P’s wishes and feelings in best interests determinations, and establishing a formal supported decision-making scheme).

Summary and Conclusions     

In this evidence, I have focused on five key problems identified within the Mental Capacity (Amendment) Bill.

In relation to placing P at the centre of the process, I highlighted issues from my research that suggest that care providers should not be responsible for consultation under the Bill. This is because people receiving care and their family members and informal carers may not feel able to express concerns for fear of reprisals.

Second, I highlighted the positive benefits that including the wider reforms to the MCA proposed by the Law Commission could bring to the overall scheme of the Bill. Amending s. 4 of the MCA to prioritise P’s wishes and feelings would help ensure that fewer people object to the arrangements for their care and treatment. Introducing a formal supported decision-making scheme could allow more people to consent to the arrangements for their care and treatment, therefore moving them outside the scope of the DoLS.

I emphasised potential problems with Article 5 compliance in respect of the proposed renewal and review periods. The renewal and review process also raise potential issues of non-compliance with Article 5(4), as well as ongoing potential conflicts of interest, especially in the case of independent hospitals and care homes.

Finally, I noted some of the challenges with seeking to narrow the definition of deprivation of liberty from the ‘acid test’ set out Cheshire West, which has its foundations in ECtHR jurisprudence.

I would reiterate that these are not the only issues with the Bill, which despite substantive revision in the Lords, would still benefit from significant change before it will be fit for purpose. It is vital that these reforms strike the appropriate balance between the potential cost-saving benefits of the new scheme, and the importance of protecting the rights of some of the most vulnerable people in society.

I would, of course, be happy to provide additional detail or further analysis of any of these points.

January 2019

List of Appendices

Appendix A: Executive Summary, Supporting Legal Capacity through Care, Support and Empowerment (2017) 

 

The Everyday Decisions project explored how people with intellectual disabilities make everyday decisions in and about their lives, and how care professionals support them in doing so. Our research explored how mental capacity law works in practice to identify areas of good practice and areas where practical changes, shifts in social attitudes or legal reform are needed to secure the rights of disabled people.

Our main legal focus has been on the Mental Capacity Act 2005 and the UN Convention on the Rights of Persons with Disabilities. We were interested in a wide range of life domains, including everyday choices about food and clothing, life choices like housing, education and employment, and difficult choices like financial, medical and legal decisions. We also explored relationship and friendship choices.

We found very many examples of excellent practice across all levels of care and support services. Many of the intellectually disabled participants spoke extremely highly of the services and support they receive from care and support staff, care professionals, family members and peer networks.

Key Findings   

We found that whereas the MCA was well embedded in the professional awareness of care professionals, few had heard of the UN CRPD. Some care professionals stressed the importance of support for people with capacity to make good decisions, not only support in making any decision.

We found that people with intellectual disabilities, including those with quite profound impairments, and limited or no communication were often facilitated to make choices about everyday activities, food, and clothing. Care professionals used a range of strategies to ensure everyday choices were both offered and respected. For those with no verbal communication, multisensory approaches to communication were used to good effect. Care planning was seen by care professionals as a vital aspect of supporting people with disabilities in making everyday and life choices.

Life choices were also often well supported. Intellectually disabled participants reported having control over decisions around education. Most intellectually disabled participants reported undertaking voluntary work, often in charity shops. Most would also like to engage in paid employment, but found very limited opportunities were available to them to access paid employment, and sometimes this was made more complex by the benefits system. Care professionals seldom reported supporting decision-making around education or employment. Decisions around housing were considered more challenging by both care professionals and intellectually disabled people, and were often made more difficult by a lack of choice or availability of suitable accommodation in appropriate locations.

Day to day financial management was an area where people with disabilities were often supported, but also needed help to manage their finances well. Innovations like easyread bank statements made it easier for people with intellectual disabilities to manage their own finances. Participants reported varying levels of support from banks around people with intellectual disabilities managing their own money. When financial power of attorney was discussed in these interviews, it most often arose as a result of experiencing challenges in dealing with banks and financial institutions.

Difficult decisions were less well supported, overall, than everyday decisions or life choices. Most intellectually disabled participants reported being able to make some medical decisions, but often taking a supporter with them to appointments to help them in difficult interactions. Care professionals reported medical decisions often being made using the best interests framework under the Mental Capacity Act 2005, following multidisciplinary best interests meetings. Care professionals also reported being asked to sign consent forms on behalf of service users, or other inappropriate understandings of the MCA by healthcare staff. Frontline care staff often suggested that financial, legal and medical decisions would be made by or through their managers, rather than being discussed directly with the disabled person.

Legal issues associated with future planning (wills, advance decisions, power of attorney) were rarely discussed by intellectually disabled participants. Those who did discuss these issues found them difficult, though expressed a desire for support in thinking through the issues. Care professionals generally reported not being involved in decision-making in these areas. Supported decision-making was uncommon, but did happen in the context of legal decisions in this research.

Most care professionals were reluctant to discuss issues relating to the relationships and friendships of the people they care for. Questions on this topic usually elicited discussion about contact with family members. In contrast, over half of the intellectually disabled participants reported being involved in an intimate relationship, including being engaged, and in long term relationships with a boy/girlfriend. Living in an independent living context (with appropriate levels of support) appeared most conducive to developing intimate relationships and friendships for people with disabilities.

Engagement with disability-focused community activities, particularly those involving the arts (music, dancing, drama, art) and sport were particularly helpful in offering opportunities for people with disabilities to form independent friendships and relationships.

Intellectually disabled participants and their supporters expressed difficulties navigating the system of benefits and sanctions. Some participants found that the payment schedules of benefits made managing money with tools like direct debit more difficult.

Community services aimed at, and especially those run by and with disabled people, like self-advocacy organisations appear to be a vital means through which people with intellectual disabilities can build decision-making skills, access appropriate support for everyday decision-making, and build supportive peer networks. Independent advocacy services were highly valued by care professionals, especially when mediating between service users and their families.

Care professionals sometimes expressed difficulties balancing the regulatory needs of care planning and paperwork with the time required to provide high quality care.

We found that there is a tension between supported decision-making and mental capacity assessment. Sometimes people are found to lack capacity when they might have been able to make their own decision with the right amount of support. Sometimes people are considered to have capacity when they were actually unable to make particular decisions.

Overall Recommendations : 

1. Whilst there is general awareness of the basics of the Mental Capacity Act, there is scope for ongoing, and potentially more detailed, training for frontline care staff about the importance of supporting decision-making under the MCA as a way of supporting legal capacity.

2. A public awareness raising campaign on the UN Convention on the Rights of Persons with Disabilities might help to increase general understandings of the CRPD within the care sector.

3. Care professionals would both be interested in, and benefit from specific training and continuing professional development on the UN CRPD and generic Human Rights issues.

4. Implementation of the changes to the best interests in the MCA proposed by the Law Commission in 2017 may help to embed supported decision-making more fully in practice, and bring the MCA closer to full CRPD compliance.

5. Intellectually disabled people and care professionals with experience of best practice in supporting legal capacity should be involved in any review and revision of the MCA Code of Practice.

6. Appropriately resourced support services, including self-advocacy groups run by and with disabled people are vital mechanisms for fostering a CRPD compliant culture of supported decision-making for people with intellectual disabilities.

7. Nuanced support and communication approaches, building on strategies developed for everyday and life choices, should be utilised for more complex life choices and legal decisions.

8. More research is needed into how banks and financial institutions engage with customers with intellectual disabilities, effective support frameworks for everyday financial management, and managing bills and payments.

9. More research is needed into how the MCA is used in medical consent processes for people with intellectual disabilities.

10. Given the importance of future planning, further research is required into how best to support people with intellectual disabilities in making wills, advance decisions and granting Power of Attorney.

11. A shift in social attitudes about intellectually disabled people, relationships and friendships is required to better support the relational lives of people with intellectual disabilities, particularly those living in care homes and supported living environments.

12. Policy makers should give serious thought to simplifying the benefits and sanctions regime in order to better support people with intellectual disabilities to enjoy an adequate standard of living and to access their communities.

13. Disabled people’s self-advocacy organisations should be funded and supported to provide additional sources of advocacy, support and empowerment for intellectually disabled people that reaches beyond the statutory minimum requirements under the MCA and Care Act 2014.

14. Frontline care professionals must be given time to complete paperwork that does not detract from their practical care giving. Local and central government investment in care services should recognise the need for both high quality care-giving and care planning.

15. The Code of Practice on the Mental Capacity Act 2005 should be revised to take account of developments in practical approaches to supported decision-making and capacity assessment.

The full Everyday Decisions Report, a summary of the findings, and an easyread version of the report can be downloaded from www.legalcapacity.org.uk/research-findings/.

Appendix B: Everyday Decisions Blog Posts on the Mental Capacity (Amendment) Bill 

 

1. Missed Opportunities: the Mental Capacity (Amendment) Bill (12 July 2018)

2. The ‘Adjusted’ Liberty Protection Safeguards: Some Concerns (13 July 2018)

3. Good News, Interesting Interpretations, and Intransigence (16 October 2018)

4. Safeguards: the missing link in the Mental Capacity (Amendment) Bill (16 November 2018)

5. The Mental Capacity (Amendment) Bill Heads to the Commons (18 December 2018)

Blog 1. Missed Opportunities: The Mental Capacity (Amendment) Bill 

Published July 12, 2018 by Rosie Harding

The Mental Capacity (Amendment) Bill [HL] had its first reading in the House of Lords last week. The second reading is scheduled for 16 July 2018. This bill has its foundations in the Law Commission’s report on Mental Capacity and Deprivation of Liberty, which was published last year. Those who read this Everyday Decisions blog will remember that the Law Commission report on Mental Capacity and Deprivation of Liberty had some quite exciting elements, which would have made a big difference to the lives of people with impaired capacity. Unfortunately, all of these have been left out of the Mental Capacity (Amendment) Bill, and we have instead been given a bill that only reforms the Deprivation of Liberty Safeguards (DoLS).

Reforming DoLS

Most people agree that the current DoLS laws are not fit for purpose and are in urgent need of reform. The number of people subject to the DoLS regime increased dramatically after the Supreme Court Decision in Cheshire West, where Lady Hale set out the ‘acid test’ for a deprivation of liberty, that the person is under constant supervision or control and is not free to leave. This then led to a situation where a great number of people were unlawfully deprived of their liberty simply because the DoLS system could not keep pace with the numbers of applications.

The reforms in the Mental Capacity (Amendment) Bill, if enacted, will change the DoLS framework to a new system, provisionally called the Liberty Protection Safeguards ‘LPS’ by the Law Commission. The intention with the LPS was to streamline the deprivation of liberty safeguard process, and save money whilst providing a framework that satisfies the UK government’s obligations under Article 5 of the European Convention on Human Rights (ECHR), and better protects the rights of intellectually disabled people.

The Bill introduces a paired-back version of the LPS, with additional responsibilities for care home managers, which were not suggested by the Law Commission. The ‘headlines’ from the bill, and how it departs from the Law Commission’s proposals are set out clearly on the Mental Capacity Law and Policy blog. One of the big differences relate to extra responsibilities to be placed on registered care home managers.

Reforming Mental Capacity Law

In their final response to the Law Commission report, the Government accepted the proposal to amend section 4(6) of the Mental Capacity Act to ascertain the past and present wishes and feelings, beliefs and values of the person, and to give particular weight to these in best interests decision-making. They also accepted the need for proper record keeping in order to use the ‘general defence’ under s. 5 of the Act. The recommendation for a power to introduce regulations to create a formal supported decision-making scheme was also ‘accepted in principle’. I detailed the difference these changes could make to disabled people’s lives in an earlier blog post.

None of these provisions have been included in the Government’s bill. Whilst the supported decision-making power was unlikely to be included in the Bill, given the government’s lukewarm reception to it, the changes to best interests and to the general defence should have been relatively uncontroversial. Neither the Explanatory Notes on the Bill, nor the House of Lords library briefing on the Bill provide any real justification for why these elements of the Law Commission proposals have been left out.

Changes to mental capacity law that have the potential to make life better for intellectually disabled people are too often neglected by politicians. It often seems that disabled people are not considered a political priority. This Government’s record on disability human rights is pretty awful: we must not forget, for example, that the UK Government are the only State Party to the UN Convention on the Rights of Persons with Disabilities to have been found by the Committee to be systematically breaching the rights of disabled people. With the Law Commission’s report, and the Mental Capacity (Amendment) Bill, there is a real opportunity to move our outdated ‘best interests’ focused capacity law towards a rights-based model, bring our capacity law framework closer to CRPD compliance, and make lives better for disabled people. Neglecting to do so is clearly a choice that has been made for the sake of political priorities.

Over the next little while, I plan to post more thoughts, building on the Everyday Decisions Project findings on why changes to best interests need to happen at the same time as DOLS reform, and why I think giving greater responsibilities to registered care home managers in the new DOLS framework might be troublesome.

Blog 2. The ‘Adjusted’ Liberty Protection Safeguards: Some Concerns 

Published July 13, 2018 by Rosie Harding

The Mental Capacity (Amendment) Bill, which has its second reading in the House of Lords on Monday 16 July will reform the Deprivation of Liberty Safeguards (DOLS) in the Mental Capacity Act 2005. The bill as it currently stands would introduce an ‘adjusted’ version of the Liberty Protection Safeguards proposed by the Law Commission. This Bill would place new responsibilities on registered care home managers to secure the authorisation of care and treatment regimes that deprive residents of their liberty. I think that this is a fairly troublesome idea, and this blog tries to articulate the reasons why I am concerned.

What are DOLS and why do they need to be reformed?

Under Article 5 of the European Convention on Human Rights (ECHR) (part of UK law as a result of the Human Rights Act 1998), everyone has the right to liberty and security of the person. People of ‘unsound mind’ can be deprived of their liberty under the ECHR, but any detention needs to be ‘lawful’ under the Convention. A person is deprived of their liberty if they are "under continuous supervision and control, and … not free to leave" (HL v United Kingdom 40 EHRR 761 at [91]). The DOLS framework was introduced to provide a framework for authorisation of deprivations of liberty for those people who require care and/or treatment in settings where they are deprived of their liberty, but lack the necessary mental capacity (under the Mental Capacity Act 2005) to consent.

The current DOLS were introduced in 2007 as a response to the European Court of Human Rights Decision in HL v United Kingdom, (sometimes known as the ‘Bournewood’ case) that a man with severe autism, HL, had been deprived of his liberty in an in-patient setting. Unfortunately, the DOLS framework has been repeatedly criticised  for its "appearance of bewildering complexity" (Lady Hale, Cheshire West) and is generally considered not fit for purpose.  Numbers of applications have increased exponentially in recent years, following the Cheshire West decision, leading to long delays and large numbers of people being deprived of their liberty unlawfully. Fully implementing the current DOLS scheme would cost vast sums of money, and is not considered an appropriate solution to the current systemic problems.

The Mental Capacity (Amendment) Bill

The Mental Capacity (Amendment) Bill is intended to be the solution to the problems with DOLS. Since reading the bill, which was published rather sooner than anyone anticipated, I have become increasingly concerned about the parts of the proposed scheme that place extra responsibilities on registered care home managers. The Bill is (loosely) based on Law Commission recommendations and a draft bill published in 2017 that recommended the introduction of a new ‘Liberty Protection Safeguards’ (LPS) scheme. But in their report the Law Commission did not propose placing any additional responsibilities on ‘care home managers’. Instead, the responsibility for securing the required medical and capacity assessments, consultations and other formalities would always have fallen on the ‘responsible body’ – usually either a hospital manager or a local authority – in other words, a state/public sector actor.

Under the bill, instead of these public functions which protect the human rights of disabled people being secured by an independent public servant, for anyone whose liberty will be deprived in a care home the person responsible for organising all of the relevant assessments, consultations, reviews and renewals will be the registered care home manager. I think that there are (at least) five reasons why this is a bad idea:

1. Costs

The major rationale for the ‘adjusted’ LPS system proposed in the Bill is to reduce the costs associated with the system that protects disabled people against unlawful deprivations of their liberty. The impact assessment  calculates that the adjusted LPS would save over £200 million per annum on the current spend and cost just £135.65 million each year (this is in contrast to fully operationalising the current DoLS framework, which they calculate would cost over £2 billion each year).

The costs of placing this responsibility onto care homes for have been assumed to be zero in the impact assessment because they will no longer have to complete existing DoLS application forms, which are described as "of comparable length and complexity". Just 0.5 days per registered care home manager have been costed for ‘familiarisation’ with the new system. This seems to me to be an under-estimation, considering the limited awareness of knowledge and understanding about disability human rights that we found in the Everyday Decisions research.

It also seems to me that care home managers are being asked to take on significantly more responsibilities under the adjusted LPS than their current standard and urgent authorisation form filling role under the DOLS. Under the proposed new system, the care home manager will also be responsible for commissioning and collating evidence of: capacity assessment, medical assessment (that the person is of ‘unsound mind’), consulting with a variety of people, notifying the responsible body that an IMCA or appropriate person should be appointed, and writing the required accompanying statement and draft authorisation record. Most of this work, as I understand it, is currently undertaken by (independent) Best Interests Assessors rather than by care home managers.

These new and additional responsibilities will require both training and time. As a result, I think the proposed adjusted LPS would place a significant financial burden on the care sector, at a time when it is already under real financial pressure. This appears to be a simple privatisation move, pushing the costs of ensuring procedural justice for disabled people onto the already privatised care sector.

2. Paperwork

In the Everyday Decisions research, we found that senior care professionals already struggle to balance the paperwork they are required to complete with the day to day pressures of running care services. In the words of  a registered care manager who took part in the project:

"More and more time is spent, because everything now it’s paperwork and paperwork, and you got to prove you’re doing stuff, rather than the actual doing of it. It doesn’t seem to matter so much anymore, as long as you’ve got a piece of paper to say this is what you’ve done. A lot of the agencies think that’s far better than actually doing the job … whether we actually do it or not doesn’t seem to make much difference, it’s that piece of paper. So more and more of my time is sat in front of that computer and I hate it. I hate it with a vengeance. … I like to spend time with the [residents]. There’s no point me trying to write care plans and all this if I actually don’t know what [their] needs are and how they need things done and what they need to do, so otherwise it is just a paper exercise." Julia, Care Home Manager.

The adjusted LPS proposals will place even more paperwork and form filling responsibilities onto care home managers, who also have wide ranging responsibilities for the day to day running of their services, staffing, budgetary responsibility, meeting CQC and other statutory regulations, and ensuring that their service provides high quality care. There is a danger that this new approach to the LPS will simply add to these perceived paperwork burdens, rather than operating to safeguard people from unlawful deprivations of their liberty.

3. Least Restrictive Alternatives

Devolving responsibility to care home managers to complete all of the paperwork for LPS, might also work against the need to ensure that all best interests decisions made are mindful of less restrictive alternatives. The challenge here is that a care home manager will generally only have sight of the systems and processes within their own service.

In contrast, under the present DOLS system, Best Interests Assessors have more of a ‘helicopter view’ of different approaches to care across a wide range of providers and arrangements. As a result, a care home manager’s approach to deprivation of liberty may not always represent the least restrictive approach available for the person in need of care. At a technical legal level, this could conflict with the principle of the Mental Capacity Act that before acts are done or decisions are made in a person’s best interests consideration needs to be given to whether it can be "as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action". At a more personal level, it could mean that people are deprived of their liberty when they may not always need to be.

Whilst this issue could, potentially, be caught at the proposed authorisation stage by the responsible body, it may not be. In particular, less restrictive alternatives that do not involve the care provider preparing the paperwork might not be always be considered. As a result, they may not be referred to in relevant justifications for why the authorisation conditions are met, in the formal statement which forms the basis for the paper review by the responsible body.

4. Potential Conflicts of Interests?

I am also concerned about the potential for conflicts of interests being generated by the adjusted LPS approach that devolves the primary responsibility to private sector care providers. Under the current model, Best Interests Assessors are unlikely to have any particular vested interests in any particular outcome for individuals. In contrast, as care homes are usually private businesses (whether run on a for profit or not-for-profit basis), it is in the financial interests of the care home manager to provide their service to a potential service user. The delegation of the protection of disabled people’s Article 5 rights to liberty and security to care homes in the manner envisaged by the ‘adjusted’ LPS model in the Bill seems to me to raise some potential conflicts of interest between individuals’ rights and care homes interests in gaining (and keeping) service users.

5. Human rights issues

I have tried, so far, in this (already lengthy) post to avoid getting into technical legal detail, but my final concern does require a little bit of engagement with the detail of human rights law. Despite ministerial statements to the contrary on the face of the bill, I am not fully convinced that adjusted LPS scheme is compliant with the Convention rights.

Private care providers still inhabit an odd hybrid public/private status in relation to the Human Rights Act 1998, despite repeated judicial and legislative attempts at clarifying this. [12]  The current situation is that where care is arranged by a local authority (whether or not that local authority funds the care), or provided by or funded by the NHS, the care provider is, under the Care Act 2014, carrying out a public function for the purposes of the Human Rights Act 1998. Any care that is arranged privately and self-funded, which applies most often in the context of dementia care, would still not be covered by the Human Rights Act 1998. The consequence of this is differential treatment in human rights law for service users depending on who has arranged or funded the care. This different treatment might mean that service users have different avenues of recompense if the service provider infringes their human rights.

I think that there are also particular challenges raised by the requirements of lawfulness under the Convention in relation to Article 5(1)(e). These are set out in the European Court of Human Rights guidance on Article 5 so I will not go into these in depth. The area here that is of most concern to me is the issue of renewals, which do not appear to require any formal reassessments of the person’s capacity, medical condition or best interests. Reassessments are, of course, one of the main cost issues associated with the current DOLS scheme, and it is understandable that there is a regulatory desire that unnecessary repetition should minimised. But given the potential in this bill for renewal of the authorisation of a deprivation of liberty for up to 3 years, I think that there is a strong case for renewed capacity and medical assessments, independent of the care provider. If for no other reason, then this may be required in order to satisfy the requirements around timing set out in the ECtHR case law where psychiatric reports that are 18 months old have been considered not to be sufficiently recent to justify a deprivation of liberty. [13]

Conclusions

As I hope the above makes clear, I think that there are several challenging issues with the adjusted Liberty Protection Safeguards in the Mental Capacity (Amendment) Bill as it currently stands. If this Bill is to succeed in replacing the current DOLS scheme, then I consider that the delegation of responsibility to care home managers needs to be rethought.

I also think that there are missed opportunities in this Bill to move our Mental Capacity Act closer into compliance and alignment with the letter and spirit of the right to enjoy legal capacity under the UN Convention on the Rights of Persons with Disabilities.

The parliamentary process does, of course, offer multiple opportunities for discussing and addressing these issues. I very much hope that these opportunities will be seized by interested parliamentarians to ensure that this proposed ‘solution’ to the current DOLS problems does not simply generate new set of deprivation of liberty problems.

Blog 3. Good news, interesting interpretations and intransigence 

Published October 16, 2018 by Rosie Harding

The second day of the House of Lords Committee stage on the Mental Capacity (Amendment) Bill took place on Monday 15th October. You can read the Hansard transcriptof the debate online. The face of the Bill has not yet been amended, despite many possible amendments being debated. In this blog, I set out some of the good news from this debate, challenge some interesting interpretations of our current mental capacity law, and rant about reflect on the Government’s intransigence on the question of the appropriate role for care home managers.

Some Good News

The Government have committed to three important and positive changes to the Bill:

1. Including 16 and 17 year olds in the Liberty Protection Safeguards;

2. Ensuring that the Bill reflects the need to consult the cared-for person and that their wishes and feelings are at the heart of the scheme; and

3. Changing the language of "unsound mind", which is entirely out of step with contemporary approaches to intellectual disability.

This is all good news. Whilst it is probably churlish of me to point this out, the Bill and the debates on it would all have been much better if these important elements had been included on the face of the Bill as introduced. However, positive progress is to be applauded, and those who raised these issues through second reading and in the first committee day can consider these (especially 1 and 3) as positive wins.

Interesting Interpretations

I am less certain about the second commitment from the Government, to consult the cared-for person. In part, I am reserving judgement until I can see the detail of the amendments that the Government propose to bring this into being. Those who know the proposals from the Law Commission of England and Wales will remember that they proposed somewhat wider changes to the place of the person in our Mental Capacity Act 2005 (MCA) than my (perhaps minimalist) interpretation of the statement from Lord O’Shaugnessy would suggest.

In their 2017 Report, the Law Commission proposed amending section 4 of the MCA so that P (the person with impaired capacity)’s wishes and feelings are prioritised in all best interests decision-making (this would, of course, include deprivation of liberty decision-making). If, as I would expect, the current Bill only changes the list of people to be consulted under Paragraph 17 of Schedule AA1 to include P, then we will get a significantly watered-down version of the proposal for respecting P’s wishes and feelings. As a result, we will miss out on the opportunity to bring English law closer into line with Article 12 of the UN Convention on the Rights of Persons with Disabilities. Part of the problem here is, I think, as a result of some ‘interesting’ interpretations of our current MCA.

According to Lord O’Shaugnessy:

As I am sure noble Lords know, supported decision-making is already part of the law, and indeed it is the second principle of the Mental Capacity Act. … It is already the case that steps should be taken to support people to make their own decisions. We have not brought forward the Law Commission’s recommendation to set up a formal supported decision-making scheme because that legal entitlement already exists. Wherever possible, of course, people should make decisions for themselves and be supported to do so. (Col 348)

This interpretation of the MCA is ‘interesting’ to me for three reasons:

· It suggests that having principle 2 as part of the current law means that supported decision-making happens in practice;

· It suggests that principle 2 of the MCA carries over into best interests decision-making; and

· It suggests that the MCA already includes a formal supported decision-making scheme.

As regular readers of this blog and my wider academic work will know, I have spent the last several years working on this issue. I would like to offer an alternative interpretation of the current impact and extent of principle 2 of the MCA.

The Everyday Decisions research project investigated how supported decision-making happens in practice in England and Wales. We interviewed 25 care professionals and 15 disabled people about their experiences of, and approaches to supported decision-making. We found that supported decision-making was well embedded in practice when used to support everyday choices about what to wear, what to eat, or what to do. In contrast, decisions about wider life choices (education, employment, housing) and more complex decisions like consenting to medical treatment, managing personal finances, making wills or granting Lasting Powers of Attorney were not so well supported. Instead, in relation to these kinds of decisions, care and support professionals were more inclined to consider them to be ‘too difficult’ and to fall back on an expansive interpretation of the best interests powers under the MCA. Please see the project report for more detail on these findings.

Official reviews of the MCA, including the House of Lords Select Committee Post-Legislative Scrutiny Report from 2014 have also found that the current approach to supported decision-making under principle 2 does not always work well in practice (see, especially, paragraphs 79-83).

In terms of the technical, doctrinal, extent of supported decision-making under principle 2 of the MCA, it is important to look at how principle 2 is framed in legislation. The full text of principle 2 is "A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success." (MCA, s. 1(3)). Principle 2 does not set out a right to supported decision-making, nor does it provide a formal scheme for supported decision-making. Instead, it sets out that a person is not to be considered "unable to make a decision" (in other words to lack capacity) unless "all practicable steps to help him do so have been taken without success". Principle 2, refers to support to make a decision, not to support towards expressing a view on a best interests decision.

Respect for the person’s wishes and feelings under the MCA was somewhat expanded by the Supreme Court decision in Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67. In that case Lady Hale stated that "the purpose of the best interests test is to consider matters from the patient’s point of view". This has shifted the legal interpretation of best interests to include more engagement with P’s wishes and feelings, but this is absolutely not the same as a formal right to supported decision-making, nor is it a legal entitlement to supported decision-making. At present, at best, principle 2 of the MCA offers informal recognition of the need to offer support, especially around communication, to help people to make their own decisions where possible. This is not, of course, to belittle the very important potential of principle 2 if it were to be fully implemented in practice.

In contrast, formal supported decision-making schemes do exist in several countries around the world (including in Canada, Australia, Sweden, Ireland and, most recently, Peru). These schemes offer graded support frameworks ranging from informal support (like that in the MCA) through to appointed and formally supervised supporters and co-decision-makers. There is not space to cover these in detail in this (already long!) blog, but I will add a link to more information when possible. The oldest of these frameworks, the Swedish model of the ‘godman’ or mentor has been around for more than half a century. The framework in British Columbia, Canada, has been in force since 1996. The frameworks in Australia, other Canadian provinces, Ireland and Peru are much more recent and are designed to bring those jurisdictions into line with disabled people’s rights to enjoy legal capacity under Article 12 of the UN Convention on the Rights of Persons with Disabilities.

At the moment, the MCA 2005 is out of step with the UN Convention on the Rights of Persons with Disabilities, and out of step with international moves to bring disability law into alignment with that convention. The UK is a signatory to the Convention, and has ratified it and is therefore bound by its provisions. If a principled stance is being taken that the Government do not believe that our legislation is incompatible with the Convention (they have been told it is, by the Committee on the Rights of Persons with Disabilities, and by many legal academics and practitioners working in this field), then they need to say so, and I think they need to carefully explain why. If not, then why not take this rare opportunity to amend mental capacity law to increase protection of disabled people’s rights and empower them to get the support they require to make and influence all kinds of decisions in and about their lives?

Intransigence

A good deal of the debate was, again, focused on the proposed role for care home managers in the new Liberty Protection Safeguards. I noted my concerns about this back in July, and I’m sorry to say that the debate so far has done little to suggest to me that the concerns I have, which are shared by many in the care sector, are being taken seriously by the Government. They are, however, being taken very seriously indeed by many Peers, for which we should all be very grateful.

Yet, I’m still concerned about the conflict of interest inherent in private providers (whether for profit or not) being involved in the authorisation of deprivations of liberty in their care homes. I’m still concerned about the huge costs of implementing this framework in the care sector, and where the money to pay for it will come from (self-funders? Local authority social care budgets? Care home profits?). I’m still concerned about the paperwork burden on care home managers, who told me in the Everyday Decisions project that the increasing paperwork demands on them can get in the way of ensuring that their service provides the best possible care and support to their service users. I’m still deeply troubled about the lack of space in this proposal for consideration of less restrictive alternatives. I’m concerned about a lot of things.

There have been some misunderstandings in relation to this issue, and I’m really not sure that the ‘flowchart’ provided by the minister makes it all that much clearer (please note that I am not claiming that my own notes, reproduced above, are helpful either). My reading of the text of the schedule, which will be the source of the law in this area irrespective of what is placed in the (not yet written, and not law) Code of Practice, is as follows:

If the person is to live in a care home, the care home manager will prepare a statement that:

· the capacity and medical assessments required under Article 5 ECHR (which can be pre-existing assessments) have been carried out;

· they have consulted with the required list of people (now to include the cared- for-person);

· they have notified the responsible body if an IMCA or appropriate person should be appointed;

· sets out their decision whether an Approved Mental Capacity Professional (AMCP) or someone who is not an AMCP should carry out the pre-authorisation review;

· gives reasons and evidence for all of these things.

The Care Home Manager will then draft the authorisation record and send the statement, evidence and record of the assessments to the responsible body. The responsible body (local authority or CCG) who can authorise the arrangements if the pre-authorisation review suggests that either the authorisation conditions are met (if conducted by an AMCP), or that it is reasonable for the responsible body to conclude that the authorisation conditions are met (if not conducted by an AMCP).

It is not entirely clear to me, from the face of the schedule, who would commission the pre-authorisation review, or when. It is also not clear from the face of the schedule who would do it if that review was not to be carried out by an AMCP, and what training or qualifications they would have to do so. I also find it most puzzling why it is only if the care home manager "is satisfied" that an AMCP should carry out the pre-authorisation review that there is actually any requirement for any person outside of that care home to meet the cared for person and talk to them about their wishes. Finally, I cannot see anywhere in that schedule a requirement for anyone to explore less restrictive alternatives under principle 5 of the MCA. I know that the principles will carry through as this is an amendment bill, not a new MCA, but I still think that serious consideration always needs to be given to the least restrictive alternative when we are thinking about depriving people of their liberty, and so it would make sense to be explicit about this here.

In summary: it is not clear and I am concerned. Reform is needed, and urgently because there are 125,000 people in the backlog of DoLS applications. That is over a hundred thousand intellectually disabled people who are currently sitting in the Bournewood Gap: lacking the capacity to consent to their care and treatment arrangements, under continuous supervision and control, not free to leave, and without any independent review of their situation. But we need to get this reform right, and the Government need to listen to those who seek a different approach than this complex, confusing and concerning model.

Blog 4. Safeguards: the missing link in the Mental Capacity (Amendment) Bill? 

Published November 16, 2018 by Rosie Harding

Like many academics interested in capacity law, I have spent the last day or so working out what the newly published Government amendments for the Report stage would do to the proposed new approach to the Deprivation of Liberty Safeguards (DOLS) regime in the Mental Capacity (Amendment) Bill. The process of law reform can, I think, make it easy to lose sight of the ‘bigger picture’ questions at the heart of why the law needs to change. In this blog, I want to reflect on why reform is needed, which parts of the DOLS require reform, and assess whether the amendments to the new framework will ensure that these safeguards work to protect people with intellectual and psychosocial disabilities from unnecessary, disproportionate and unlawful deprivation of their liberty.

Safeguards

The first thing we need to consider is who these safeguards are for. DOLS are safeguards for the person who is having their liberty restricted, "P". [14]  Second, we need to make sure that we are clear about what we are safeguarding P against. The purpose of the safeguards is to ensure that P’s rights under Article 5 of the European Convention on Human Rights (as incorporated into UK law by the Human Rights Act 1998) are protected. These are legal, procedural safeguards. The content of them is shaped by the interpretation of the Convention rights by the European Court of Human Rights (ECtHR), who provide a minimum level of human rights protection, and our domestic courts, most importantly our Supreme Court, who can (and sometimes do) go further than the European Court in protecting those rights.

What rights does P have under Article 5 according to the ECtHR?

· Under Article 5(1)(e) deprivation of liberty must be "in accordance with a procedure prescribed by law"

· ECtHR case law has made clear that a Deprivation of Liberty cannot occur unless:

o P is reliably shown by objective medical evidence to have a mental disorder;

o P’s mental disorder must be of a kind that warrants compulsory confinement; and

o The deprivation of liberty must be shown to be necessary in the circumstances.

· Under Article 5(4) P has the right to have the lawfulness of their detention decided speedily by a court.

· ECtHR case law has made clear that for persons detained under Article 5(1)(e):

o Automatic review must happen at ‘reasonable intervals’: intervals of less than 1 year have been accepted by the court; longer intervals have not.

o P should not run the risk of remaining in detention long after the time when deprivation of liberty has become unjustified.

o Reviews must include contemporaneous medical assessment, and not simply rely on the original assessment.

o Periodic reviews that are solely initiated by the authorities are not sufficient on their own, P is also entitled to initiate proceedings at reasonable intervals.

The original DOLS, enacted after the ECtHR decision in HL v United Kingdom comply with the procedural safeguards required by the Convention.

ECtHR case law has, to date, only applied in institutional contexts (hospitals, secure care environments). The Cheshire West case took English law somewhat further than this, and (in my view, rightly) brought many more care placements and arrangements into the scope of these procedural safeguards against the arbitrary deprivation of liberty. The problem is that this vastly increased the number of people whose care placements and arrangements meant that they needed access to the procedural safeguards in the DOLS. The consequence: many more applications were required and costs skyrocketed at a time of budget cuts and political fiscal restraint. This led to delay, backlog, and ongoing violations of individuals’ procedural rights under Article 5.

The DOLS system itself (complicated, legalistic and procedurally focused as it is) has, as a consequence, been exposed as unfit for the purpose of safeguarding the rights of this much larger number of people. The current Mental Capacity (Amendment) Bill was introduced to respond to these consequences. The hope is that it can provide adequate safeguards for P whilst reducing the cost and bureaucracy for care providers, local authorities and hospitals.

The current state of the Mental Capacity (Amendment) Bill

The Committee stage of the Bill has now been completed and the next debate will be the House of Lords Report stage on 22 November. Progress of the Bill can be tracked on the Parliament website. The big question is this: will the Mental Capacity (Amendment) Bill, including the proposed government amendments provide the required procedural safeguards to P whilst also meeting the other aims of reform (simplification, cost reduction)?

What the Government amendments would do

Alex Ruck Keene has helpfully blogged a digest of the Government amendments from Tim Spencer Lane. As I reported in my last blog on the Bill, the Government have agreed to include 16 and 17 year olds in the Bill. Several of the amendments speak to this issue (which I won’t go into here). They have proposed changing the wording of ‘unsound mind’ (taken from Article 5(1)(e) of the Convention) to the term ‘mental disorder’, which is more in line with the ECtHR jurisprudence, and mirrors the definition in the Mental Health Acts. I also won’t go into this issue in more detail, except insofar as to hope that a justification for using this language (rather than the looser language of the MCA) will be provided by the Minister at Report stage.

As I expected, the Government amendments to include a duty to consult P are not quite as wide ranging as the Law Commission had proposed in the report that this Bill is based on. The Law Commission recommended changing s. 4 of the MCA to give priority to P’s views in all best interests determinations under the MCA (including DOLS). The proposed government amendments require that 1) "regard must be had" to P’s wishes and feelings "(amongst other matters)" in relation to the determination that the deprivation of liberty is necessary and proportionate; and 2) that P must be consulted under paragraph 17. These are positive changes, and bring the DOLS regime closer to compliance with Article 12 of the UN Convention on the Rights of Persons with Disabilities. These amendments do not, however, speak to the safeguards required by Article 5 ECHR.

There are also amendments to parts of the bill which introduce new responsibilities for care home managers. It will now be up to the responsibility body to decide whether or not a care home manager will be responsible for arranging the assessments and paperwork.  There has also been clarification that it is the responsible body (local authority, CCG or hospital manager) who will commission the pre-authorisation review which I blogged about in October. New provisions have been proposed to make clear that assessments cannot be carried out by persons with a ‘prescribed connection’ to the care provider, which can include a financial connection. These amendments go some way to addressing the concerns I set out in July about potential financial conflicts of interest. These new provisions, the detail for which will come through regulations, add in new safeguards against conflicts of interests where a care home manager is responsible for paperwork. They do not, however, directly speak to the safeguards against deprivation of liberty under Article 5.

What about the safeguards against deprivation of liberty?

On balance, I think that the safeguards required by Article 5(1)(e) about medical assessment, the existence of mental disorder and necessity are largely addressed by the new scheme, provided it is read alongside the relevant domestic and international case law. The changes the government propose will allow delegation of some of the paperwork to care home managers where this is appropriate, but the proposed amendments ensure legal responsibility rests firmly with the relevant body. I am less convinced that the new scheme provides sufficient safeguards in relation to Article 5(4) rights to review of a deprivation of liberty. Important provisions here relate to access to independent advocates (IMCAs), the framework for renewal and review of the deprivation of liberty, and access to information.

Access to independent mental capacity advocacy is somewhat enhanced by the proposed amendment that those who lack capacity to consent to be represented by an IMCA should have one appointed to represent them unless it is not in their best interests. Access to IMCAs is still not, however, always available where there is an "appropriate person," which is a dilution of the Law Commission proposals. Appropriate persons are likely to be family members, and are subject to the consent of P, unless P lacks the capacity to consent to that person representing and supporting them. There are many aspects of this that make sense – where P has supportive and knowledgeable informal networks, it is important to make use of these. [15]  We do, however, need to be attentive to potential problems either where relationships are not as consensual as they may appear (for example where P is unduly influenced by their ‘appropriate person’), or where the ‘appropriate person’ doesn’t have sufficient knowledge and understanding of mental capacity law to fully protect P from unlawful deprivations of their liberty. Access to an IMCA, on an opt out basis, is an important safeguard for P.

No substantive amendments have been proposed to the renewal or review provisions in the Bill. The authorisation can be renewed initially for up to 12 months, then for up to 3 years at any subsequent renewal. Regular review is to be a required feature of the new framework, as a result of a specified programme of regular reviews, and where a review is sparked by any of: a variation in the authorisation; a request from "a person with an interest in the arrangements"; if P becomes subject to mental health arrangements or requirements; or if the reviewer "becomes aware" P doesn’t want to live in or be cared for in the placement. But without any statutory limits being placed on the timescale for reviews, I am concerned that these might not operate well enough to protect P’s rights under Article 5.

No significant changes have been made to when and whether an Approved Mental Capacity Professional must be involved or carry out the required assessments. The bill remains silent on when and whether new assessments are required as part of the review or renewal process. It is also still silent on rights to information for P, or for P’s "appropriate person," about how to challenge or appeal a deprivation of liberty authorisation. These issues in combination still raise concerns for me about the extent to which the Bill introduces sufficient safeguards to be compliant with the UK’s obligations under Article 5, and especially under Article 5(4).

Overall, it seems to me that the tireless effort of the Lords during committee stage has helped to move the Government away from some of the completely indefensible failures of this Bill. The new restrictions designed to protect against conflicts of interest where care home managers are given a larger role in the DOLS process are particularly important. But because the Bill was so bad to begin with, and so many amendments were required, there was little time during the committee stage to reflect in detail on the procedural safeguards around review and renewal that should have been at the heart of the Bill.

I very much hope that there will be more substantive discussion of these important questions around access to information and advocacy, and the need for more substantial review, especially where authorisations are renewed for 3 years at a time, during the next stages of the parliamentary process. Fundamentally, if we get the procedural safeguards in the Bill wrong, and do not include sufficient protection for P against unnecessary and lengthy deprivations of liberty, there is a danger that this new scheme will also be unfit for purpose, taking us right back to square one. There have been a number of amendments proposed by others in the Lords that speak to these issues, so here’s hoping that the Government will be in a listening mood on 22 November. I hope there is also time in the parliamentary process for some of the other missed opportunities to reform capacity lawto be included in this Bill.

Blog 5. The Mental Capacity (Amendment) Bill Heads to the Commons 

Published December 18, 2018 by Rosie Harding

The Mental Capacity (Amendment) Bill is due to begin its journey through the House of Commons this afternoon (18 December 2018). A wrecking amendment has been tabled by the opposition, and the debate itself is scheduled for after the Emergency Debate on the EU Withdrawal Agreement, so we will all have to wait and see what happens next. Assuming that neither the Government nor to Bill are defeated this afternoon, getting this Bill right will require a lot of work from MPs. **UPDATE** the Bill has cleared second reading, and committed to a Public Bill Committee. Proceedings in Committee are scheduled to be concluded by 24 January 2019. Given that parliamentarians will be away on their holidays from 20 December to 7 January, the breakneck pace of this Bill shows no signs of slowing down.

When the Bill was initially published in July 2018, I was very disappointed at the way it had been drafted. It seemed to me that the Government had rushed it out in an effort to save money [16]  without any attempt to actually make life better for the people who would be most affected by it (people living with dementia, learning disabilities, autism and brain injury).

The Bill as it currently stands [https://services.parliament.uk/Bills/2017-19/mentalcapacityamendment.html] is, in many ways, a much better Bill than the one introduced in July 2018. The Lords addressed several of the serious failures in the original Bill.  I was particularly pleased to see the Lords pass an amendment at third reading that added a new clause on rights to information, [17] taking forward the recommendation to do so from the JCHR. Other amendments that have improved the bill include: extending the Bill to cover 16 and 17 year olds; including rights of enhanced access to independent advocacy; including protection from conflicts of interest created through the enhanced role for registered care home managers; making the role of AMCPs clearer and stronger; and clarifying that the ‘necessary and proportionate’  test relates to harm to the cared-for person. Despite all these improvements, I agree with the Law Society that there is a lot more work to be done to make this bill lawful and workable.

Capacity law reform doesn’t happen very often. Usually, when we do get reform in the area of mental disability law it happens slowly, with careful attention to detail and consensus building across the political spectrum. The recently published Mental Health Act Review is an example of this approach. The current Bill seems to be much more knee-jerk than it could have been, despite being grounded in a Law Commission report from 2017. Reform of the current system of Deprivation of Liberty Safeguards is, undoubtedly, required, but it really is important that we get this right.

I’m still deeply disappointed by the lack of engagement with the wider reforms to the Mental Capacity Act that were proposed by the Law Commission. The recommendations that were left out of this bill, and are still left out, would give priority to P’s wishes and feelings in the best interests test, and include a regulatory power to introduce a nominated supporter scheme. These changes have the potential to re-focus our capacity law, to bring us closer to compliance with the UN Convention on the Rights of Persons with Disabilities, and to transform the lives of disabled people. I would dearly like to see changes along these lines made during its progress through the commons.

Appendix C: Professor Rosie Harding Biography 

 

Professor Rosie Harding

Professor of Law and Society, Birmingham Law School, University of Birmingham.

Contact details

Telephone: +44 (0) 121 414 4960
Email: r.j.harding@bham.ac.uk
Twitter: @rosiehardinguk
Web Profile: www.birmingham.ac.uk/staff/profiles/law/harding-rosie.aspx

Postal Address:
Birmingham Law School
University of Birmingham
Edgbaston
Birmingham
B15 2TT

Professor Harding completed her LLB at the University of Edinburgh, her LLM at Keele and her PhD at the University of Kent. Prior to joining Birmingham Law School in 2012, she taught at Keele Law School from 2004-2012. She has held visiting positions at Lund University (Sweden), University of Adelaide (Australia), Flinders University (Australia) and the University of Edinburgh.

Professor Harding's research explores the place of law in everyday life. Her primary interests are in social justice and family law, particularly the regulation and recognition of caring and intimate relationships. She uses social science methods including both qualitative and quantitative approaches to empirical research to investigate the place of law in everyday life, including everyday understandings of law and legal discourse. Her work is grounded in feminist legal theory and gender, sexuality and law, and has been supported by research grants from the AHRC, ESRC, British Academy and Leverhulme Trust. Her publications include two monographs, four edited volumes, and over 30 journal articles and book chapters.

Her current research is focused on the relationship between mental capacity and legal capacity in the context of everyday decisions made by people with intellectual disabilities. She runs a blog relating to this research, which has funded by the British Academy and the ESRC, at www.legalcapacity.org.uk. Her latest book, Duties to Care: Dementia, Relationality and Law (2017, Cambridge University Press) explores family carers’ experiences of the regulatory frameworks surrounding dementia care. Her broader research interests are in the gender, sexuality and law field, and also include human rights, discrimination and equality, and socio-legal research methodology. Her first book, Regulating Sexuality, won the 2011 Hart-SLSA Book Prize and Early Career Prize. Professor Harding was a British Academy Mid-Career Fellow from 2016-2017. In 2017 she was awarded the Philip Leverhulme Prize for Law.

Professor Harding is Chair of the Socio-Legal Studies Association (SLSA). She has been a member of the SLSA executive committee since 2013, serving as Vice Chair from 2015-2017, and was elected Chair of the SLSA in 2017. Professor Harding is a Fellow of the ESRC Peer Review College, and regularly reviews proposals for other funding bodies. She is a member of the Society of Legal Scholars and a Fellow of the Higher Education Academy.

Appendix D: References 

 

Arstein-Kerslake, A., & Flynn, E. (2016). The General Comment on Article 12 of the Convention on the Rights of Persons with Disabilities: a roadmap for equality before the law. The International Journal of Human Rights, 20(4), 471-490. doi:10.1080/13642987.2015.1107052

Arstein-Kerslake, A., & Flynn, E. (2017). The right to legal agency: domination, disability and the protections of Article 12 of the Convention on the Rights of Persons with Disabilities. International Journal of Law in Context, 13(1), 22-38.

De Bhailis, C., & Flynn, E. (2017). Recognising legal capacity: commentary and analysis of Article 12 CRPD. International Journal of Law in Context, 13(1), 6-21.

Dhanda, A. (2006-2007). Legal Capacity in the Disability Rights Convention: Stranglehold of the Past or Lodestar of the Future? Syracuse  Journal of International Law & Commerce, 34, 429-462.

Flynn, E., & Arstein-Kerslake, A. (2014). Legislating personhood: realising the right to support in exercising legal capacity. . International Journal of Law in Context, 10(1), 81–104.

Gooding, P. (2013). Supported Decision-Making: A Rights-Based Disability Concept and its Implications for Mental Health Law. Psychiatry, Psychology and Law, 20(3), 431-451. doi:10.1080/13218719.2012.711683

Harding, R. (2012). Legal constructions of dementia: Discourses of autonomy at the margins of capacity. Journal of Social Welfare and Family Law, 34(4), 425-442. doi:10.1080/09649069.2012.755031

Harding, R. (2015). The Rise of Statutory Wills and the Limits of Best Interests Decision‐Making in Inheritance. Modern Law Review, 78(6), 945-970.

Harding, R. (2017a). Care and relationality: supported decision making under the UN CRPD. In R. Harding, R. Fletcher, & C. Beasley (Eds.), ReValuing Care in Theory Law and Policy: Cycles and Connections: Routledge.

Harding, R. (2017b). Duties to Care: Dementia, relationality and law. Cambridge, UK: Cambridge University Press.

Harding, R. (2017c). A relational (re)view of the UK’s social care crisis. Palgrave Communications, 3, 17096. doi:10.1057/palcomms.2017.96

Harding, R. (2017d). What is Legal Capacity? Retrieved from http://www.legalcapacity.org.uk/everyday-decisions/what-is-legal-capacity/

Harding, R. (2018). Mental Capacity Act 2005. In E. Rackley & R. Auchmuty (Eds.), Women's Legal Landmarks: Celebrating the history of women and law in the UK and Ireland (pp. 533-538). Oxford: Hart Publishing.

Harding, R., & Peel, E. (2013). ’He was like a Zombie’: Off-label prescription of antipsychotic drugs in dementia. Medical Law Review, 21(2), 243-277.

Harding, R., & Peel, E. (2018). Polyphonic Legality:Power of Attorney Through Dialogic Interaction. 0(0), 0964663918803409. doi:10.1177/0964663918803409

Harding, R., & Taşcıoğlu, E. (2017). Everyday Decisions Project Report: Supporting Legal Capacity through Care, Support and Empowerment. Retrieved from

Harding, R., & Taşcıoğlu, E. (2018). Supported Decision-Making from Theory to Practice: Implementing the Right to Enjoy Legal Capacity. Societies, 8(2), 25.

Harding, R., & Taşcıoğlu, E. (2019). "That’s a bit of a minefield": Supported decision-making in intellectually disabled people’s intimate lives. In C. Ashford & A. Maine (Eds.), Research Handbook on Gender, Sexuality and Law. Cheltenham: Edward Elgar.

Law Commission, L. (2017). Mental Capacity and Deprivation of Liberty. (372).

Martin, W. (2015). The MCA under scrutiny: meeting the challenges of CRPD compliance. Elder Law Journal, 5(1).

Martin, W., Michalowski, S., Stavert, J., Ward, A. D., Ruck-Keene, A., Caughey, C., . . . McGregor, R. (2016). The Essex Autonomy Project Three Jurisdictions Report: Towards Compliance with CRPD Article 12 in Capacity/Incapacity Legislation across the UK. Retrieved from Colchester:

Peel, E., & Harding, R. (2014). ’It’s a huge maze, the system, it’s a terrible maze’: Dementia carers’ constructions of navigating health and social care services. Dementia, 13(5), 642-661. doi:10.1177/1471301213480514

Peel, E., Taylor, H., & Harding, R. (2016). Sociolegal and practice implications of caring for LGBT people with dementia. Nursing Older People, 28(10), 26--30. doi:10.7748/nop.2016.e852

Quinn, G. (2010). Personhood & Legal Capacity: Perspectives on the Paradigm Shift of Article 12 CRPD. Paper presented at the HPOD Conference, Harvard Law School. http://www.nuigalway.ie/cdlp/documents/publications/Harvard%20Legal%20Capacity%20gq%20draft%202.doc

Stainton, T. (2016). Supported decision-making in Canada: principles, policy, and practice. Research and Practice in Intellectual and Developmental Disabilities, 3(1), 1-11. doi:10.1080/23297018.2015.1063447

Thorogood, A., Mãki-Petãjã-Leinonen, A., Brodaty, H., Dalpé, G., Gastmans, C., Gauthier, S., . . . Bobrow, M. (2018). Consent recommendations for research and international data sharing involving persons with dementia. Alzheimers & Dementia. doi:10.1016/j.jalz.2018.05.011