Mental Capacity (Amendment) Bill [HL]

Written evidence submitted by North East Lincolnshire MCA Group (formerly the Strategic Network) (MCAB49)

Background to this Submission

The MCA Group comprises commissioners (council/ CCG), providers (from large NHS bodies to small charitable ones) and community representatives. It exists to oversee, monitor and drive forward local MCA implementation.

The Group has previously made representations via local MPs and the Joint Committee on Human Rights regarding the Deprivation of Liberty Safeguards ( DoLS ) and proposals for its reform. Initially, the Group sought to urge the Government to address the Law Commission’s proposed Liberty Protection Safeguards (LPS). Subsequently, the Group expressed grave concerns regarding the Government’s Mental Capacity (Amendment) Bill (‘the Bill ) , most notably with regard to its legitimacy, the omissions within it (when compared with Law Commission proposals), lack of rights for deprived persons (hereafter referred to as ‘P’) and the costs and risks it represents.

Whilst the Group acknowledges that some positive amendments to the Bill have arisen from debates in the House of Lords, the Group wishes to suggest further amendments to the Bill and raise some wider concerns.

Suggested Amendments to the Bill

1. Include a requirement for a distinct assessment of P’s wishes and feelings. Where P is opposed to the accommodation or care/ treatment , advocacy should be immediately available

2. Include additional triggers for involvement/ oversight by an Approved Mental Capacity Professional ( AMCP ) , for e .g. where P is unfriended, others are objecting on P’s behalf, or P is subject to higher levels of intervention or restriction (such as covert medication)

3. Clarify responsibilities regarding AMCPs; it seems appropriate that local authorities should register and approve AMCPs but that supplying them rests with the responsible body which requi r es the authorisation

4. If the Government is unwilling to support the Law Commission s ‘opt-out’ advocacy system, the respo nsible body or AMCP should be able to appoint one for P at any time they consider appropriate

5. Given the reduction of P’s rights in the Bill when compared with those in the Law Commission’s proposals, reconsider the ability to re-authorise deprivations for as long as three years (following an initial authorisation for up to one year). As a minimum, narrow t he circumstances in which authorisations for a three year period are allowable, without robust review

6. Remove the option for private hospitals to act as a responsible body (the funding commissioner should act as responsible body, or i n default, the local authority where the hospital is situated)

7. Ensure that rights given to those aged 16-17 are not less than those afforded to young people in the Children Act 1989; specifically, objections by those with parental responsibility should trigger additional safeguards

8. Ensure that provision is made for inclusion of authorisation conditions, with clear consequences for non-compliance with conditions

9. Remove reference to care home managers undertaking LPS assessments and make it clear that responsible bodies shall identify whichever staff they consider appropriate to undertake such assessments

10. Clarify who is required to undertake assessments , specifically capacity assessments, mental health assessments and the assessment of whether P is deprived of liberty, and that such is necessary and proportionate . Currently such assessments are undertaken by invaluable, highly trained and specially qualified professionals

11. Require responsible bodies to ensure that ‘appointed persons’ are willing and able to discharge their duties to P (and specifically to maintain contact with P and appeal on P’s behalf - as required by current case law ), and monitor whether the appointed person is complying.

Wide r Concerns

Whilst consideration of the DoLS is long overdue, the Group is concerned that given the dramatic differen ce s between the Bill and Law Commission proposals, the Bill is being rushed through Parliament with inadequate time for consultation. The lack of opportunity for consideration is compounded by the lack of detail within the B ill; provision of detail via regulations and a revised Code of Practice will provide less opportunity for scrutiny.

The Group considers that there are arguments for retaining the DoLS in preference to another flawed system , and wishes to emphasise the many positive outcomes for P that the DoLS facilitate . However, whether the DoLS are retained or replaced , the key factor i n delivering adequate safeguards for those deprived of liberty is the extent to which those safeguards are proper ly funded. Local authorities have significant waiting list s of applications for authorisation (both via DoLS and the alternative Court of Protection processes) . Local authorities and CCG’s are aware that there are likely to be far more individuals deprived of liberty outside of DoLS settings than have yet been identified. This must be addressed to ensure LPS does not start with a backlog and/ or avoids backlogs developing .

Particular concerns arising from the Government’s June 2018 impact assessment include:

1. The number of authorisations to process will not reduce

Whilst inclusion of a definition of deprivation of liberty within the Bill has been discussed, it appears unlikely that this will result in something narrower than that set out within the Cheshire West judg e ment , if it is to comply with Article five . Th us, the number of authorisations will not diminish as a result of LPS. Since Cheshire West, the number deprivations of liberty identified are continuing to rise across all settings; a rguably, the increased awareness resulting from implementation of a ny new system will increase this trend particularly outside of DoLS settings and in respect of those aged 16-17 (regarding which, the impact assessment’s estimates appear too low) . The reasons for concluding that those Ps who had multiple applications under DoLS will only have one under LPS is not justified within the impact assessment . Whilst LPS provides for authorisations of up to three years, the cohort of individuals for whom this length is appropriate may not be large

2. Authorisations under LPS will not take half of the time that they take under DoLS

Whilst any streamlining of the authorisation process should reduce the time taken to process them, LPS is unlikely to result in a dramatic time saving. Local implementation of a lighter touch approach to DoLS renewals indicate s that the time taken does not reduce by as much as half (as estimated by the impact assessment) . The lighter touch approach is not used locally in cases of objection, so reducing the number of Ps to which the approach can apply (under LPS, objection would require more rigorous oversight from an AMCP; no time estimates are given for AMCP assessments as opposed to ‘standard’ cases in which the re are no objections t he time taken by AMCPs may equate to BIA time taken under DoLS )

3. Appeals will not reduce

It is not clear from the impact assessment why a n AMCP is more likely to be successful in avoiding applications to the Court of Protection than the efforts of Best Interest Assessors (BIAs) and others . Whilst nationally the number of applications under s21A are lower than case law guidance appears to indicate is appropriate, local evidence suggests that enhanced understanding of objection results in an increase in appeals. Arguably, the increased awareness resulting from implementation of a new system will increase appeals still further. Mental Health Act 1983 review recommendations also focus attention on the identific ation of objection ( objection being crucial in identify the appropriate authorisatio n route )

4. Training needs will increase

It is widely acknowledged that the MCA and DoLS are poorly understood and implemented , even 10+ years since enactment . Against this backdrop, it is unclear why (for e .g. ) care home managers will be able to understand their new duties on the basis of one half day training, and only 10% of social workers and doctors will need additional training; no provision for training appears to be made for those supervising social workers and others , or for more senior managers . Awareness regarding deprivation of liberty outside of DoLS settings has been slow to develop; professionals across health and care require training on identifying deprivation of liberty even if they are not required to undertake assessments or reviews

5. Numbers of skilled staff are underestimated

The number of BIAs currently available is inadequate; in North East Lincolnshire the conversion of only 90% of our BIAs to AMCP s (as estimated by the impact assessment) would exacerbate the shortfall. New AMCPs will be need ed . Our advocacy services are also overstretched and the number of those requiring advocates will not reduce under LPS if the number of authorisatio ns are not reduced . The impact assessment’s estimate of advocates required for Ps with no appropriate person appear low

6. Evidence of mental disorder may incur additional costs

The impact assessment does not include the costs of either a) the equivalent of a Mental Health Assessor assessing P’s mental disorder, or b) the costs of confirming P’s diagnosed mental disorder via their GP or other specialist. At present, not all GPs are charging for confirmation of diagnosis, but it is likely that they will do so if the number of requests for diagnosis increase (when compared with, say, the number of such requests received as part of Court of Protection applications) .

January 2019

 

Prepared 16th January 2019