Mental Capacity (Amendment) Bill [HL]

Written evidence submitted by Eleanor Tallon and Annette Wilby, staff members in the MCA and DoLS team at Calderdale Council

This is a submission from different staff members in the MCA and DoLS team at Calderdale MBC and represents a collective of personal opinions of different members of the team. Although the amendment bill has been discussed by group members, the submission has been written by:

Eleanor Tallon ( E.T.)- I am a qualified Best Interest Assessor with 4 years’ experience (11 years’ experience as a Social Worker). The MCA reform and new LPS scheme has a powerful impact on my role which is why I'm very motivated to contribute to the discussion. Please note, that although I'm aware that the new scheme applies to a broader target group (including those in hospitals and community), my response is focused on the intended scheme within care homes, as this is the area I assess in most and so can comment most accurately.

Annette Wilby (A.W.) - I have been working as a Best Interests Assessor since 2011 and since the "Cheshire West" judgement in 2014 have worked as an Advanced Practitioner, Deputy MCA Lead and am currently the Team Manager for the dedicated MCA and DoLS Team for my Local Authority.

Summary of submission

1) The response to the proposed increased role of the care home manager in the LPS scheme in care home settings.

2) Concerns over the lack of information regarding who is able to act as the independent reviewer.

3) A summary of the perceived strengths of the Bill’s proposed scheme.

4) A summary of the perceived weaknesses of the Bill’s proposed scheme.

5) Consideration of the Bill’s proposed scheme in Psychiatric settings.

6) Consideration of the name of the proposed new scheme.

7) Conclusions, hopes and suggestions.

(ET) My understanding of the proposed procedure in care home settings is as follows:

***The care home manager arranges / provides 3 assessments:

1. Capacity assessment on consent to care arrangements.

2. Assessment / evidence of a mental disorder.

3. Appropriate and proportionate assessment (that the care arrangements are proportionate to risk of harm).

The proposals are that the care home manager arranges the assessments to be completed by workers who are suitably experienced/ have appropriate knowledge and skills. The care home manager can rely on previous assessments (if these are still relevant). 

1.2(ET) The suggestion of relying on previous mental capacity assessments conflicts with the principles of MCA 2005, (assessments done must be decision and time specific) and the appropriate/ proportionate statement would ideally draw upon the previous best interest decision made regarding P going into the specific care setting - but this may have been done a long time before admission into care and sometimes hasn't even been done at all. There are also issues in relation to many people not having a formal diagnosis of mental disorder (and whether an up to date review of mental health would be willingly and accurately produced by a busy GP; is questionable). 

1.3 (ET) I foresee that in many situations the care home managers would need to produce new assessments. I know from seeing the mental capacity records in the care plans when I review them as a BIA, that care home staff don't always have the necessary time/ skills/ understanding to complete mental capacity assessments which are in adherence to the MCA 2005. Furthermore, I feel that it would be very difficult for an 'in house' worker to determine whether it was proportionate for P to have restrictive care arrangements (24 hour supervision/ locked door etc) in relation to the risk of harm without them knowing what other, less restrictive options were available to them as part of wider community / preventative services, or what had been previously tried out. This should be part of the decision making that a social care assessor or health care professional would be focusing on as part of the best interest assessment on P going into a care home if they were found to lack capacity to consent.  If there was no recent or relevant best interest assessment, which could support an 'appropriate/ proportionate assessment' then there would need to be proper consideration of whether the appropriate/ proportionate assessment had real value and validity - as it would be very easy for care home staff to produce reports deeming the care setting/ arrangements were appropriate given the person is 'at high risk of falls' or that they need all personal care attending to. Even today professionals who do not have knowledge of the personalised support options, often deem that 24 hour care is needed, in my experience this has often been the view of consultants when discussing patients in hospital and that mentality is still widely spread amongst those with little or no direct experience of the developments and options available to support people in less restrictive community settings. As a Best Interest Assessor under DOLS I would consider proportionality to risk and I would refer directly to alternative packages of care having been considered and failed, but then there are also many cases where people can be supported successfully in their own homes with risks greatly minimised by the support options available to them. And this knowledge is essential when considering proportionality of restrictive care arrangements. So the important point here, is whether the worker doing an appropriate and proportionate assessment is actually aware of the alternatives to the care that is provided in a care home; and it's unlikely that someone without a professional services background, would have that knowledge and be able conduct a fair assessment. 

1.4 (ET) I feel that in practice, those authorities with a genuine intention to protect a person's rights, will feel obligated to provide hands on support/ professional input to the care home during the process of reviewing the pre authorisation assessments, and those who are crunching numbers will process poor quality and substandard assessments as a desk top exercise. I would hope the latter is in the minority and that responsible bodies endeavour to quality assure in an effective manner. (AW) To add to this point, as liability will still remain with the Responsible Body - and none carried by the care home itself, then the financial risk this will pose to Responsible Bodies will cause them to intervene if the authorisations submitted by care homes fall short of requirement and this can be more time consuming and costly than if the Responsible Body had just undertaken the work in the first place.

1.5 ( AW) The increased role of managers relates to care home settings only , managers of supported living schemes are not included - this does appear to be creating a "2 tier " system - if you are an older person you are going to be in a care home setting, there are no supported living types of setting available for the elderly that could provide a similar level of care to a residential care home. So the proposed increased role of care home managers would seem to affect mainly the elderly people who are in need of a high level of care - this seems to offer a "second class" service/ process/ safeguards to the elderly. The procedure for people in community settings will still be led by the Responsible Body – and for the reasons we have outlined above - we feel that this will be the better option and more likely to provide the necessary safeguards. I feel that the proposed amendments will not provide a fair and equitable scheme.

2.1 ( ET) ***Moving on from the 3 assessments; the care home manager is then expected to prepare a statement for 'a pre authorisation review'.

The pre -authorisation review is carried out by an experienced professional (again not involved in direct care of P) and is appointed by the responsible body (health or social services). My fear here, as that 'experienced professional' is vague, and there needs to be clarity that this professional MUST have working knowledge and experience specifically of DOLS or carrying out MCA's and best interest assessments regarding care settings/ restrictive care arrangements (ie those previously qualified as BIA's or equally experienced). 

2.2(ET) It seems very likely to me, considering the pressures on front line resources; that the independent reviewing task may be passed to staff who may have had little input into complex capacity /best interest decision making under MCA 2005 and the application of DOLS and so may not have the proper tool kit to assure that the authorisation is appropriate in terms of adherence to the legislative requirements; and that a person's rights are upheld in respect to the ECHR (articles 5 and 8).

2.3 ( ET) If an authorisation is granted by a less experienced worker (without due regard to the relevant domestic and European law); a person is no further protected than prior to the birth of DOLS. The essential understanding of legal information is a pre - requisite to the BIA role, which enables the DOLS to be a safeguarding process rather than a tokenistic gesture; which is equivalent to the ticking of a box by someone who doesn't quite understand what they are ticking. Again, I stress the importance of allocating BIA's (or workers with in depth knowledge/ experience) as the independent reviewer.

3.1 Summary of strengths of the new scheme : 

- That P's wishes are paramount (is still made explicit).

- That Proportionality is linked to harm.

- That P and their appropriate person are to be made aware of their rights to request AMCP /advocate and court processes if necessary.

- That an AMCP will be involved when P is seen to be objecting (hopefully will help to streamline resources to those most highly in need of safeguards).

- Covers care homes / hospitals AND community settings. This may provide wider access to the safeguards.

- Authorisation can cover more than one setting (planned hospital stay/ respite  etc) and focus is on care arrangements- this reduces duplication.

- Bureaucracy / paperwork may be reduced which may help to increase the amount of people actually assessed/ reduce waiting times.

- There is an objective to define Deprivation of Liberty more clearly to ensure the scope of the scheme is safeguarding the right people. 

- The potential to authorise for longer periods than 12 months – with the right safeguards and processes ( ie built in reviews) to ensure that this is used appropriately could reduce what can feel to be unnecessarily repeated assessment of individuals.

4.1 Summary of weaknesses of the new scheme :

- 'Consultation for the statement required only if practical' – this may provide a loop hole with potential to be abused.

- That the AMCP 'only meets P if appropriate/ practical to do so'- if a person is objecting when would it not be appropriate to meet with P? How can P's wishes / views be fully explored / confirmed without meeting them? 

- 3 year renewal option has potential to be abused.

- Scheme relies on appropriate records to already be in place - reality is that new records will often need to be produced and quality of records will vary given on experience of staff completing them, may fall below standard and need professional input.

- Requirement for assessments places a lot of work on care home managers who are likely to refer back to social services or other professionals for further input and this creates backlogs and slow processing of authorisations (sounds familiar!).

-Experience of independent reviewer must be specific to MCA and best interest decision making for significant care arrangements/ deprivation of liberty; or the standard of scrutiny will not be high enough to provide any safeguard to P.

-Authorisation record seems vague; would there not be specific forms i.e ADASS forms? (which have been somewhat useful in ensuring standardised and compatible/ comparable authorisation records across different authorities etc.)

- The removal of conditions within authorisations would be a massive detriment to the protective power of the scheme. Conditions can and have been pivotal to the recommendation of authorisation and the quality of the Care Plan and P’s life.

- Professionals in the health settings are typically less involved in assessing capacity and may need further training / support- similar issue with health managers who have not been involved in DOLS authorisation processes.

-Conflict of interests issues may be present particularly in private hospital settings. 

- At DoLS network events I have heard that the response to many queries about some of the details is that this will be decided/ outlined in the Code of Practice ( eg – who will/can be the "reviewer") - but will a Code of Practice be a safe mechanism to ensure that practice remains sufficiently "Article 5" compliant ? Could this not increase the likelihood of more legal challenges to thrash out the detail through case law? This would be a very expensive and time consuming way to settle issues that perhaps could be settled with a little more consideration.

– the amendment bill has deviated from the Law Commission’s proposed LPS scheme in some key areas. This is the only consultation that has been afforded to anyone since the changes were announced with the launch of the bill - and the timescale for making submissions to the committee at this time are very tight in my opinion - and do not seem to be enabling any verbal consultation or be accessible to any of the public or any groups of the population who will be affected by the amendment bill ( as previously discussed in para 1.5 – it looks like the proposed scheme may disadvantage certain sectors of the population, but all sectors of the population do not seem to have the time/ opportunity to comment about it).

5.1 Psychiatric Settings:

(ET) My focus has primarily been on care homes but I would like to pass some comment on the application of the new scheme in psychiatric settings, as the use of DOLS in psychiatric settings is something of a bug bare. It's a very unclear and subjective interface between MHA and MCA in this area; and my thoughts are that the MHA already provides stronger safeguards than DOLS. Yet going forward; non objecting patients could be subjected to DOLS more readily under the new regime and this would imply that an AMCP wouldn't be involved if they are not objecting, therefore even less protection and scrutiny than what we have in DOLS at present. 

5.2( ET) I resolutely believe that if DOLS/ LPS is chosen as the legal framework to follow within psychiatric settings; then an AMCP should be appointed regardless of whether a person is objecting or not, otherwise there could well be many situations reminiscent of Bournewood and a return to arbitrary detention so common 15 years ago, which would be a very sad regression after so much pioneering was done. 

6.1( ET) Finally I would just like to add (a less pressing but still important note) that I prefer the term 'Liberty Safeguards' as opposed to 'Liberty Protection Safeguards' as the 'protection' bit sounds to old-school and paternalistic. Wouldn't 'safeguards' be enough of an explanation of the objective of the scheme? We had a mouthful with DOLS so let's not flower this up too much. 

7.1( ET) I would hope that the new scheme serves as a stripped back version of DOLS, that keeps as much of the empowering features as the original, and allows more people to benefit from it. I also think the scheme can be worked differently by each responsible body, and invariably there will be disparities, but I'm fortunate to be part of a council which believes passionately in maintaining the integrity of the Mental Capacity Act and hopefully we will push the agenda forward and encourage our partners to embrace the change with positivity; and be creative with our collective resource.

7.2( AW) I appreciate that it is one thing to have a process outlined in statute - and how the statute is applied and implemented in practice is another matter entirely and will be subject to wide variation – getting the statute right is no guarantee that it will be implemented appropriately! In keeping abreast of the amendment bill – I am constantly thinking how this may affect our processes and practice locally, and since I saw the proposed MCA Amendment Bill , I have been thinking of how to maintain human rights compliant practice DESPITE the processes outlined in the bill. There have been so many amendments and amendments of proposed amendments that I am struggling to keep up with where things at but it does make me question whether this is a sign that there is a need to hit pause and perhaps start again with a little more consideration and consultation if there are still significant deviations from what was proposed by the Law commission. Please could I request that there is a bit more of a pause to make sure that the replacement scheme for DoLS does not end up being as unfit for purpose as what we currently have?

7.3 ( AW) If the proposed scheme of the Law commission was still felt to be too unwieldy – then could there be an argument to focus on amending the scheme that we currently have to enable it to work better and be more fit for purpose instead of starting from scratch trying to design a whole new set of processes? For example - the changes to the mental health evidence requirement and more leeway in what can be used as evidence of mental disorder, the ability to authorise beyond 12 months for appropriate situations, made to or within the current framework alone would provide a significant benefit and saving. Since the activity following Cheshire West – there are a lot of people who have become well versed and expert in the current framework - could we not focus on fixing what we have got instead of starting again?

Thank you for the opportunity to share our thoughts and opinions.

January 2019


Prepared 17th January 2019