Legislative Scrutiny: Mental Capacity (Amendment) Bill Contents

4Advocacy and rights of appeal

Access to an independent advocate

59.Part 5 of Schedule 1 provides that the cared-for person should be represented and supported either by an ‘appropriate person’ or an Independent Mental Capacity Advocate (“IMCA”). An IMCA is an advocate instructed under the MCA who is responsible for supporting and representing a person who lacks capacity to make certain decisions. If the person has capacity to consent to being represented by an IMCA and requests it, then one should be appointed. Where the person lacks the capacity to consent, the care home manager or responsible body must request an IMCA where they are satisfied that being represented and supported by one would be in the person’s best interests. An IMCA must be appointed unless there is an ‘appropriate person’ who would be suitable to represent and support the person. In certain circumstances the appropriate person must themselves be provided with an IMCA.52

60.These arrangements are significantly weaker than those proposed by the Law Commission which would have given an automatic right to an independent advocate for those subject to LPS authorisation on an opt-out basis.53 In our report we supported the enhancement of rights to an independent advocate which we viewed as an important factor in ensuring that individuals can exercise their rights to challenge authorisations. This is essential for compliance with Article 5(4) ECHR, which requires that everyone deprived of their liberty be entitled to take proceedings by which the lawfulness of their detention shall be decided speedily by a court. It is also important for compliance with Article 12 CRPD in supporting the person to exercise decision-making capacity.

61.We note that the practicality and resource implications of providing advocates to all will be affected by whether the definition of ‘deprivation of liberty’ is revisited to reduce the numbers of people caught by it. Notwithstanding our concerns about the shortage of advocates and the need for appropriate funding for them, we continue to believe that access to advocacy should be available as of right. This should not be subject to a best interests test. We suggest the following amendment:

Schedule 1, paragraph 36

Amendment 7

Page 18, line 41, delete paragraph 36(1) - (3) and insert “The responsible body must take all reasonable steps to appoint an IMCA to represent and support all cared-for persons”.

Rights of appeal

62.Under Article 5(4) ECHR, those deprived of their liberty have a right to bring a court review of the lawfulness of their detention. In our previous report we noted that under DoLS the rate of appeal to the Court of Protection is extremely low; only 1% of DoLS authorisations are appealed. By comparison appeals are brought in 47% of decisions to detain someone under the MHA. This suggested to us that there are barriers to exercising appeal rights and we recommended that the individual’s right to participate in court ought to be set out in statute and that responsibility for securing the individual’s access to court should be prescribed clearly on the face of the Bill. Whilst the individual’s appropriate person and advocate should have a duty to appeal on their behalf where necessary, the responsible body should be under a clear statutory duty to refer cases where others fail to do so, for example, when the individual objects or the arrangements are particularly intrusive.54

63.The Bill as it stands is silent on this issue and in its impact assessment the Government predicts that as a result of the introduction of the AMCP role the number of appeals to the Court of Protection will halve to a mere 0.5% of applications. In light of this we strongly reiterate our previous recommendations. We suggest the following amendment:

Schedule 1, paragraph 21

Amendment 8

Page 14, line 7, at end insert new clause-

Duty to assist the cared-for person to access court

(1)The cared-for person has a right to challenge their authorisation before a court.

(2)The appropriate person, the IMCA (where appointed) and the responsible body are all under a duty to assist the cared-for person to access a court in order to challenge their authorisation in circumstances where:

(a)the cared-for person, the family of the cared-for person, or another person in a genuine relationship with the cared-for person, has expressed objection to the care and treatment arrangements; or

(b)the care or treatment arrangements are particularly intrusive.

(3)Where an authorisation is challenged in court, the appropriate person, the IMCA and the responsible body are all under a duty to facilitate, as far as possible, the cared-for person’s participation in court proceedings.

64.We also consider it essential that the cared-for person and their ‘appropriate person’ are provided with information about the authorisation and their rights to challenge the authorisation in court. This is a safeguard required under Article 5 (4) ECHR.55 Such a requirement currently exists under DoLS but is not included in the LPS scheme. The Government has suggested that the right to make a Subject Access Request (SAR) under the General Data Protection Regulation (GDPR) offers an alternative means by which the cared-for person or their family can obtain information about an authorisation;56 we do not accept this is an adequate substitute. This omission ought to be remedied. We suggest the following amendment:

Schedule 1, paragraph 21

Amendment 9

Page 14, line 7, at end insert -

Right to information

21A(1) Throughout the authorisation process, the cared-for person must be fully informed of their rights.

(2) The responsible body must take all reasonable steps to ensure that the cared-for person is informed of and understands, as far as possible, the nature of the process and their rights within the process, including:

(a)the steps involved in the authorisation process;

(b)the nature, duration, and effect of the authorisation;

(c)their right to object to the authorisation and the right to a review by an Approved Mental Capacity Professional;

(d)their right to challenge an authorisation decision in court under section 21ZA;

(e)their right to be supported and represented by an appropriate person;

(f)their right to have an IMCA appointed;

(g)their right to have the authorisation reviewed regularly.

53 Law Commission, Mental Capacity and Deprivation of Liberty, HC 1079, para 12.40

54 Written evidence from Dr Lucy Series (DOL0068), p 5, submitted to the Committee’s inquiry into The Right to Freedom and Safety: Reform of the Deprivation of Liberty Safeguards. Note that if an IMCA fails to bring a challenge to court in circumstances where such a challenge is required to secure an individual’s Art 5(4) rights, the local authority is required to bring the case to court.

55 Van Der Leer v The Netherlands (App no 11509/85) (1990) 12 EHRR 567, para 28; X v United Kingdom (App no 7215/75) [1981] ECHR 6; LM v Slovenia (App no 32863/05) Chamber Judgment [2014] ECHR 608.

56 HL Deb, 15 October 2018, col 337

Published: 26 October 2018