Legislative Scrutiny: Mental Capacity (Amendment) Bill Contents

Conclusions and recommendations

Defining deprivation of liberty

1.A definition on the face of the Bill is important to give cared-for persons, their families, and professionals greater certainty about the parameters of the scheme. It would also ensure that scrutiny and resources are deployed where necessary. It is undeniable that any definition in statute may be revised or refined by future case law but, in our view, it is not possible to design and implement an effective system of safeguards without having a clear sense of to whom it should apply. (Paragraph 17)

2.The Bill does not set out a specific ‘route’ for authorisations for persons living in their own home, however it is understood that it is envisaged that the local authority or clinical commissioning group would carry out the required assessments. We seek further clarity from the Government about how and by whom assessments will be made in domestic settings. It is not clear to what extent the requirements for authorisations would be extended to self-funders who, or whose families, make their own domestic care arrangements. (Paragraph 19)

3.We recognise that these issues are complex and require considerable expertise to ensure that any statutory definition is pragmatic, medically appropriate, non-discriminatory, and compliant with Article 5. Whilst we are mindful of the inherent difficulties, nevertheless, we believe that the lack of a statutory definition may result in persistent problems with the new scheme. We therefore recommend that a workable definition is included in the Bill and consider that the two approaches discussed above are worthy of Parliamentary debate. (Paragraph 32)

Authorisation of arrangements

4.It is a significant concern that the statement that care home managers would be required to provide to the responsible body (Schedule 1 (14)) does not appear to include a record of the assessment of necessity and proportionality, only the capacity and medical assessments. We recommend that the Bill is amended to require that care home managers must provide a record of the necessity and proportionality assessment. (Paragraph 44)

5.Whilst some of the provisions in the Bill may comply with Article 5 ECHR, we have serious reservations about whether the Bill does enough to protect those who are at risk of unlawful detention. We are also concerned that the Government’s impact assessment significantly underestimates the resources required for implementation. For example, we question the assumption made in the Government’s impact assessment that “there will be no net change in costs to providers of authorisations and administration.” (Pargraph 48)

6.If the Government goes ahead with its proposal for care home managers to facilitate the assessment process, it is essential that safeguards for those subject to the authorisation process are enhanced including: a duty to consult the cared-for person directly; a broader criterion for referral to an AMCP; and a requirement for a stronger right to an independent advocate. (Paragraph 49)

7.To ensure that individuals are consulted and in light of the requirement under ECHR case law that consideration should be given to the wishes and feelings of the cared-for person, we consider it essential that the cared-for person be included among the list of consultees. (Paragraph 51)

8.As currently drafted, the legislation only permits a referral to an AMCP when the care home manager or responsible body has a reasonable belief that the person does not wish to reside or receive care or treatment in the place provided for by the arrangements. We are concerned that this criterion is too narrow, particularly in the context of care homes. At a minimum, it should be broadened to include cases in which relatives or those with a genuine relationship with the cared-for person object. Other situations in which referral to an AMCP might be appropriate include those in which the cared-for person is prohibited contact with named persons, when the person is deprived of their liberty for psychiatric treatment, or in exceptional cases, such as those with very high levels of restraint. (Paragraph 53)

9.In our view, these proposals are technically compliant with the Article 5 requirement for independence, although it is always open to States to have higher standards. We reiterate the concerns expressed in our previous report that the review process is not free from conflict of interest. Whilst it would be disproportionate to establish a separate review body, we seek assurances from the Government that the Code of Practice will set out clear guidelines to eradicate conflicts of interest. (Paragraph 55)

10.It continues to be our belief that advance consent, with appropriate safeguards, could offer people greater choice and control over their future care and treatment arrangements. (Paragraph 57)

Advocacy and rights of appeal

11.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. (Paragraph 60)

12.The Bill as it stands is silent on appeal rights 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. (Paragraph 62)

13.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. 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; we do not accept this is an adequate substitute. This omission ought to be remedied. (Paragraph 63)

Published: 26 October 2018