Mental Capacity (Amendment) Bill [HL]

Written evidence submitted by Liz Gale, Mental Capacity Act Lead, Bi-Borough Adults Social Care and Public Health, Royal Borough of Kensington and Chelsea and Westminster City Council (MCAB66)

Mental Capacity (Amendment) Bill House of Commons Public Bill Committee

Executive summary:

· There is a need to consider amending the main Mental Capacity Act to improve people’s legal rights to supported decision-making and to having their will and preferences respected if they lack capacity to make their own decision and therefore a best interests decision needs to be made.

· The amendments in the Law Commission Mental Capacity (Amendment) Bill and the provisions in the Mental Capacity (Northern Ireland) Act 2016 and the Irish Assisted Decision-Making (Capacity) Act 2015 could be considered.

· These are vital areas for Parliament to debate.

· Not including these changes risks endangering the effectiveness of the new deprivation of liberty scheme.

Background on the organisation:

The Royal Borough of Kensington and Chelsea and Westminster City Council Bi-Borough Adults Social Care and Public Health Department provides a joined-up approach to meeting the statutory social care and public health duties contained in the Care Act 2014 and the Health and Social Care Act 2012 and other relevant legislation, including the Mental Capacity Act 2005. Front-line practitioners and their managers are supported to implement the Mental Capacity Act by members of the Safeguarding and Quality Team, including the Mental Capacity Act Lead and the Deprivation of Liberty Safeguards Manager. We have experience of how the Act is working in practice.

1. Better rights under the main Mental Capacity Act and effective implementation of the whole of the Mental Capacity Act are integral to good care and underpin an effective deprivation of liberty scheme to ensure that people’s rights are safeguarded. Locally, we have consistently found that when understanding of the main Mental Capacity Act is poor, outcomes for the service-user are also poor and often their care is only improved following the Deprivation of Liberty Safeguards assessments. This is a very costly way of working and can cause distress to service-users. The fact that the current Mental Capacity (Amendment) Bill focuses exclusively on the new deprivation of liberty scheme without including the other amendments the Law Commission proposed is counter-productive.

2. The Mental Capacity Act needs to be amended to improve rights in relation to both supported decision-making and best interests, in line with Article 12 of the United Nations Convention on the Rights of Persons with Disabilities, which includes the need to ‘provide access by persons with disabilities to the support they may require in exercising their legal capacity’ and to ‘ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person’ https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities/article-12-equal-recognition-before-the-law.html .

Supported decision-making

3. There is a culture in adult social care of capacity assessment being carried out without the person having been offered enough support to make their own decision. We are challenging this and promoting the second principle of the Mental Capacity Act and the new NICE Guideline on Decision-making and mental capacity helps to emphasise the importance of supported decision-making https://www.nice.org.uk/guidance/ng108 .

4. When practitioners do consider how to support someone to reach their only decision, they often assume that they need to provide the support themselves and do not consider support from others. If they do consider support, there still seems to be a strong next-of-kin notion so that professionals look for just one non-professional (preferably a family member). However, for most of us, there are at least some decisions we make where we look for support from several different people, because they’ve got different knowledge, experience and perspectives. There is also a tension between encouraging the person to be supported by family members and friends, and always needing to be aware of potential safeguarding issues.

5. The Mental Capacity Act does include a duty to provide support, in s1(3): ‘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. ’ However, it is easy to justify why it is practicable to offer only very limited support. There is therefore a need to amend the Act to ensure both that the practitioner has to establish what support the person needs to reach a decision and how that support can be offered, and that the person’s family and friends are included to the extent the person would like in the provision of that support.

6. These two aims could be achieved through including in the Mental Capacity Act something similar to the provisions in s1 (4) and s5(2) of the Mental Capacity Act (Northern Ireland) 2016 http://www.legislation.gov.uk/nia/2016/18/section/1/enacted :

s1 (4) The person is not to be treated as unable to make a decision for himself or herself about the matter unless all practicable help and support to enable the person to make a decision about the matter have been given without success (see section 5).

s5 (2) Those steps are-

(a) the provision to the person, in a way appropriate to his or her circumstances, of all the information relevant to the decision (or, where it is more likely to help the person to make a decision, of an explanation of that information);

(b) ensuring that the matter in question is raised with the person-

(i) at a time or times likely to help the person to make a decision; and

(ii) in an environment likely to help the person to make a decision;

(c) ensuring that persons whose involvement is likely to help the person to make a decision are involved in helping and supporting the person.

7. The specific supporter(s) role (proposed s63A) in the Law Commission draft Mental Capacity (Amendment) Bill would also be a vital legislative change to increase the access of people to exercise their legal capacity.

Best interests decision-making

8. The current best interests checklist in the Mental Capacity Act includes the provision that the person’s past and present wishes and feelings must be considered when deciding what is in their best interests. The concept of rights has developed and this is reflected in the newer legislation in both Northern Ireland and Eire. In Northern Ireland, the decision-maker must give ‘special regard’ to the person’s past and present wishes and feelings. In Eire, reflecting the language of the U nited Nations Convention on the Rights of Persons with Disabilities , the decision-maker must :

s7 (b) ‘give effect, in so far as is practicable, to the past and present will and preferences of the relevant person, in so far as that will and those preferences are reasonably ascertainable’ http://www.irishstatutebook.ie/eli/2015/act/64/section/8/enacted/en/html#sec8 .

9. There is a need for legislative change on how much weight to accord to the person’s wishes and feelings to meet our obligations under the United Nations Convention on the Rights of Persons with Disabilities. Although it is possible to rely on Court of Protection caselaw (which is reasonably consistently according great weight to the person’s own views ), it is hard for local authorities (and other public bodies) to take risks. It can be appropriate (and helpful) to take a case to court but not all risky decisions can be taken to court. It is often deemed necessary to prioritise a service-user’s physical health and safety over their will and preferences. How to balance the right to safety and the right to autonomy (even if the person lacks capacity to make the decision, they are likely to have a view about what they want to happen) is a very important and difficult area and it is important that Parliament debate it so that a decision can be reached on how we as a society want professionals to reach these types of best interests decisions .

January 2019

 

Prepared 22nd January 2019