Mental Capacity Act 2005: post-legislative scrutiny - Select Committee on the Mental Capacity Act 2005 Contents


Chapter 7: Deprivation of Liberty Safeguards

Background

253.  The Deprivation of Liberty Safeguards (frequently known as DoLS) were not part of the original Mental Capacity Act in 2005. Introduced as amendments via the Mental Health Act 2007 in response to the findings of the European Court of Human Rights in the Bournewood case (see Box 7 below) and enacted in 2009, they are often seen as entirely separate from the rest of the Act. As Professor Jones explained: "although the DoLS legislation is part of the Mental Capacity Act, in practice they are two separate pieces of legislation. That is how they are regarded".[465]

BOX 7

The Bournewood gap
The change in the law introducing the Deprivation of Liberty Safeguards was necessary following the decision of the European Court of Human Rights in HL v United Kingdom (2004),[466] concerning the deprivation of liberty of an autistic man with a profound learning disability. HL had lived at Bournewood hospital for 32 years before being cared for by Mr and Mrs E. in their home under a resettlement scheme, where he lived for three years. In 1997 he was admitted back into Bournewood hospital following an incident in a day care centre, where he had become agitated, hitting himself on the head with his fists and banging his head against a wall. Clear instructions were given that if he attempted to leave the hospital, he should be sectioned under the Mental Health Act 1983, but he never made this attempt, so remained an informal patient. His carers were prevented from visiting him, in case he would want to go home with them. His carers took the case to court, claiming a breach of HL's rights under the European Convention on Human Rights. The European Court of Human Rights held that HL had been deprived of his liberty and that this was contrary to Article 5 of the European Convention on Human Rights. The regulatory structures in effect at that time were insufficiently robust to meet the requirements of Article 5. This lack of regulation has come to be known as the 'Bournewood gap', based on the name of the case in the domestic courts, prior to the Strasbourg reference.

254.  Toby Williamson of the Mental Health Foundation and former co-chair of the Making Decisions Alliance, a campaign in support of the introduction of mental capacity legislation at the time the Act was passed, told us that: "We wanted a relatively simple legislative solution that met the requirements of the European court's findings on the case, something that reflected the elegant simplicity of the Mental Capacity Act".[467] This was not delivered, he said, because the safeguards "were led by the Department of Health at the time when it was also dealing with the reform of the Mental Health Act. So they have a very strong flavour of the procedure of the Mental Health Act".[468] Indeed, recent research commissioned by the Department of Health found that the interface between the Mental Health Act and the safeguards was poorly understood by practitioners in part because "the principles and scope of, and criteria for, the MHA and the MCA are fundamentally different …the MCA is based around principles of autonomy, empowerment, and the importance of supporting decision-making capacity as far as possible; the MHA is not".[469] As Dr Allen of the College of Social Work commented, the "two bits of legislation" did not easily fit together because "they come out of different legal and philosophical routes..and have very different histories".[470]

255.  The safeguards apply only to deprivations of liberty in care homes and hospitals. Any other deprivation of liberty based on mental incapacity must be approved directly by the Court of Protection. The provisions require the manager of the hospital or care home to apply to a 'supervisory body' (now the local authority) for an authorisation of any suspected deprivation of liberty. The supervisory body sends out assessors who determine whether to grant the application with reference to a set of 'qualifying requirements' contained in schedules A1 and 1A to the Act, including the best interests requirement, which largely mirrors the best interests test in the main body of the Act, and the 'eligibility' requirement, which delineates between the use of the safeguards and the Mental Health Act 1983. A Relevant Person's Representative (RPR) is appointed to keep in contact with the person and support them in, for example, triggering a review of the authorisation or making an application to the Court of Protection to challenge an authorisation. In some cases an Independent Mental Capacity Advocate will also be appointed (see chapter 5). The Care Quality Commission has a statutory role to monitor and report on the use of the safeguards, which we address in chapter 4. We have made recommendations concerning access to advocacy in chapter 5, and concerning access to the Court of Protection and the availability of non-means tested legal aid in deprivation of liberty cases in chapter 6. This chapter considers the remaining issues concerning the safeguards.

Overview of findings

256.  Despite the clear intention from Government to close the 'Bournewood gap', our evidence suggests that the Deprivation of Liberty Safeguards are frequently not used when they should be, leaving individuals without the safeguards Parliament intended.

257.  The level and breadth of criticism of the Deprivation of Liberty Safeguards, including from the judiciary, demonstrates that the legislation is not fit for purpose. Better implementation would not be sufficient to address the fundamental problems identified.

258.  We therefore recommend that the Government undertake a comprehensive review of the DoLS legislation with a view to replacing it with provisions that are compatible in style and ethos with the Mental Capacity Act. The model of widespread consultation that preceded the Mental Capacity Act itself should be followed, with adequate time allowed for effective Parliamentary scrutiny.

259.  We further recommend that the independent body with responsibility for oversight and coordination of implementation of the Mental Capacity Act develop a comprehensive implementation action plan to accompany new legislation, in consultation with professionals, individuals, families and unpaid carers.

260.  We set out our findings in detail and make further recommendations concerning the replacement legislative provisions throughout this chapter.

Use of the Deprivation of Liberty Safeguards

261.  The Government predicted that the number of people who would need to be deprived of their liberty for the purposes of treatment or care would be "relatively small".[471] However, the figures provided in the regulatory impact assessment appear contradictory: 50,000 individuals were identified as likely to be at risk of assessment under the safeguards, but the Government simultaneously suggested a worst case scenario of only 21,000 being subject to an assessment. The number of applications was expected to be higher than necessary initially, but once understanding had developed "about deprivation of liberty and how to avoid it" the numbers would fall.[472]

262.  In contrast to Government predictions, the number of applications was initially low, with only 7,157 in 2009/10, rising to 11,887 in 2012/13, just over half of which were authorised. Although this represented a 66% increase in applications, it was still far below the number originally anticipated by the Government.[473] The Alzheimer's Society considered even the recent higher figures as suspiciously low when compared to the 200,000 people with dementia living in care homes, and the "large number" likely to go into hospital in the course of the year.[474] The quarterly snapshots show that the highest number of authorisations in place at any one time in 2012/13 was 1,607.[475] Liberty believed that "thousands, if not tens of thousands, are being de facto detained unlawfully" as a result of a failure to make applications.[476] This view was not universal: the National Care Association, having expected far fewer applications, expressed surprise at "how many DoLS have been applied for and how many have been granted."[477]

263.  The National Care Association was among many witnesses to express concern at the regional variations in application rates, which they suggested reflected "real regional variations about interpretation of the law".[478] The figures published by the Health and Social Care Information Centre confirm significant regional differences in application rates (figures shown are for applications completed per 100,000 adults). In 2012/13 the East Midlands had an application rate of 48.6, the South West of 37.7 and the North East of 35.7. At the other end of the scale London had a rate of 14.1, Yorkshire and Humber of 22.8 and the North West of 24.6. The overall rate in England was 28.3.[479] Application rates varied substantially with ethnic group. Rates were highest among the white population (30.4) and lowest among the Asian and Asian British population (8).[480]

264.  The Mental Health Alliance argued that "implementation has been extremely uneven, with the result that the protections the scheme is supposed to afford to vulnerable people are effectively unavailable in large parts of the country".[481] Mencap shared these concerns.[482] The Care Quality Commission suggested that varying levels of understanding of the Act across providers and commissioners of services could be a factor underlying the regional variations.[483] In its most recent report on the safeguards the CQC expressed concern that "instances of unlawful deprivation of liberty may not be recognised by providers or commissioners."[484]

265.  While acknowledging that regional variation may reflect differences in understanding of the safeguards, the Department of Health argued that some variation was inevitable because "some areas have higher populations of older people, some areas have more hospitals and more care homes and some care homes have higher populations of people with dementia."[485] What the figures do not reveal is whether practice is good or poor. Mr Neary pointed to the conundrum presented by the data: "If you have two neighbouring boroughs and, say, one has authorised two DoLS and the next borough has authorised 52 … is two good, or is 52 good?"[486]

266.  Nicola Mackintosh suggested that the low number of applications reflected the compliant nature of many incapacitated adults:

"if you have a vulnerable person detained in a care home who is physically or verbally expressing a wish to leave, those cases are more likely to be raised before the court than cases involving a compliant, incapacitated person. That was the case in the Bournewood case. I do not think the DoLS scheme has cured the illegality".[487]

Joanna Burton concurred, saying that those who are compliant "are rarely considered potential 'candidates'" for the safeguards.[488] Similar views were expressed by Paul Farmer of Mind[489] and by Articulate Advocacy.[490] Most worryingly, Jonathan Senker, of VoiceAbility, told us that "I do not know whether the decision-making around L, the man at the heart of Bournewood, would be different now than it was when he was detained".[491]

267.  Confusion over the interface with the Mental Health Act appeared to be another reason for the low number of applications. Advocacy in Action reported that poor understanding of the Mental Capacity Act among mental health professionals had led to the use of detention powers under the Mental Health Act instead of the safeguards.[492] Alzheimer's Society reported "a clear lack of understanding of when to use the Mental Health Act and when to use the Mental Capacity Act", citing enquiries to their helpline from individuals whose family member had been sectioned under the Mental Health Act when the safeguards should have been used.[493] London Borough of Camden reported that confusion about the interface between the two pieces of legislation had resulted in low rates of applications under the safeguards from mental health wards; as a result "it is likely that there are a number of people in these types of settings who lack capacity, but who are not subject to any regime, and whose rights are not being protected in any way".[494]

268.  A local authority MCA and MCA DoLS Team illustrated the point by asking for clearer guidance on whether a DoLS assessment was required in a case strikingly similar to that of HL: "an incapacitated and informal patient (not detainable under the Mental Health Act and not able to give valid consent to be an inpatient either but compliant) in a psychiatric ward setting but not free to leave until such time a suitable placement is found". [495] Despite the clear intention for the safeguards to apply in exactly such circumstances, questions clearly remain in the minds of professionals.

269.  The Minister for Care and Support, Norman Lamb MP, told us that the Bournewood gap had been addressed in legislation, but acknowledged that "not all care homes and hospitals understand fully when the DoLS should be used. Further work is needed in this area".[496]

270.  We are concerned that there is a very real risk that the Deprivation of Liberty Safeguards are frequently not used when they should be, leaving individuals without the safeguards Parliament intended, and leaving care providers vulnerable to legal challenge.

Criticisms of the legislation

271.  While the Mental Capacity Act was generally described as "sound and innovative legislation"[497] the DoLS were viewed as "hugely complex, voluminous, overly bureaucratic, difficult to understand and yet [providing] mentally incapacitated people with minimum safeguards".[498] The House of Commons Health Select Committee, in August 2013, described evidence it received on the safeguards as "profoundly depressing and complacent", stating that "despite fine words in legislation" vulnerable individuals "are currently widely exposed to abuse because the controls which are supposed to protect them are woefully inadequate".[499] Mr Justice Charles, Vice-President of the Court of Protection, described the experience of writing a judgment on the safeguards as feeling "as if you have been in a washing machine and spin dryer".[500]

272.  There was, nevertheless, support for the purpose underlying the safeguards. The Law Society argued that, where implemented properly, their use encouraged "managing authorities to put greater thought into planning how they deliver care, and to avoid blanket restrictions".[501] Mr Neary said that without the safeguards and the ability to challenge the authorisation in the Court of Protection "Steven would now be in that care home in Wales that Hillingdon intended to send Steven to".[502] (See Box 3 in chapter 3). But it was equally clear from the evidence we have received that the purpose behind the safeguards was not being consistently achieved.

Why are the safeguards not working in practice?

FAILURE TO APPLY THE PRINCIPLES

273.  The Care Quality Commission argued that the primary issue was one of a lack of understanding of the Act: "If the '5 key principles' and the concepts of 'capacity' and 'best interests' … are properly understood by those working at all levels of the health and social care system then the … Safeguards would be adequate".[503] Evidence suggested, however, that this connection was rarely made, and Irwin Mitchell LLP argued that "poor understanding of capacity assessments and best interests decision making applies in relation to the DoLS safeguards as much as it does in relation to any other best interests decision".[504] It was further suggested that the safeguards were often seen as "a need for authorities to set up paperwork processes to make restrictions on a person 'legal', rather than … actual and real safeguards for people".[505] Significant criticisms were made of the failure to apply the 'less restrictive option' principle in relation to the safeguards.[506]

274.  We recommend that replacement legislative provisions make a clear link to the principles of the Mental Capacity Act to ensure consistency with the empowering ethos of the Act as a whole.

COMPLEXITY

275.  Perhaps the most frequent criticism of the safeguards was their complexity and bureaucracy. The 3 Counties IMCA service reported that: "The experience for the person and his or her family can be one of difficulty in understanding what is happening, further alienation, and … distress in an already distressing situation", while for professionals it "can often be bewilderment, discord, and stress".[507] Bracknell Forest Council, Age UK Devon, London Borough of Camden and Lancashire County Council DoLS Team all raised concerns regarding the standard forms, viewing them as lengthy, overly numerous and needing redesign in a more accessible format.[508] Independent research commissioned by the Department of Health concurred and recommended a redesign of the standard forms.[509]

276.  The complexity of the eligibility criteria governing the interface with the Mental Health Act 1983, set out in schedule 1A to the Act, was subject to much criticism and, as already noted above, appeared to result in the safeguards not being applied when they should be.[510] Derek Boothby, a Best Interests Assessor and Approved Mental Health Professional, argued that "the interface issues challenge even the most astute and knowledgeable, the impenetrable nature of the schedules relating to the MCA do not help in this respect, any legal challenge in this area seems to add to the confusion rather than helping it".[511] Camden Adult Safeguarding Board said that the criteria caused "confusion and conflict" among professionals, highlighting a difference in thresholds between the safeguards and mental health legislation.[512] Professor Fennell and Dr Series argued that the overlap of eligibility created unnecessary difficulties and uncertainties in decisions about care,[513] while Serjeants' Inn Chambers argued for an "overhaul" of Schedule 1A, which they considered "far too complex" and "lacking in clarity".[514] They also pointed to a new gap created by attempts to prevent overlap with the Mental Health Act,[515] which we consider below (paragraphs  298-300).

277.  We recommend that replacement legislative provisions and associated forms be drafted in clear and simple terms, to ensure they can be understood and applied effectively by professionals, individuals, families and carers.

278.  We note that the Code of Practice to the Mental Health Act 1983 is due for review in 2014. Clarification on the relationship between the Mental Capacity Act and the Mental Health Act is urgently required to assist practitioners.

A DEFINITION?

279.  Many witnesses called for a statutory definition of 'deprivation of liberty' to provide greater clarity and certainty.[516] The Act ties the definition to that of the European Convention on Human Rights. Section 64 (5) MCA states that "in this Act, references to deprivation of a person's liberty have the same meaning as in Article 5(1) of the Human Rights Convention." This applies whether or not the deprivation is carried out by a public body.[517] The Human Rights Act 1998 also requires the courts to take account of decisions of the European Court of Human Rights in determining any question relating to a convention right.[518]

280.  Nevertheless, the definition that has been developed by the courts was considered by Liberty to be narrower than that required by Article 5 of the European Convention.[519] Liberty further suggested that the explanation contained in the Code of Practice to the safeguards was out of date, following at least 16 published judgments on the meaning of deprivation of liberty.[520] The absence of a final judgment in the case of Cheshire West and Chester Council v P,[521] concerning what constitutes a deprivation of liberty and currently under consideration by the Supreme Court, added to the uncertainty.[522]

281.  Underlying some of the calls for a definition appeared to be a lack of consistency, with care homes receiving conflicting messages from different assessors. Elmari Bishop reported that "We will go to our hospitals and care homes and say, 'This is what you need to look out for', and then a best-interest assessor might come and assess someone and give them a completely different message".[523]

282.  The Government indicated that they would review the issue of a definition following the decision of the Supreme Court.[524] However, the Government's memorandum argued against a statutory definition as this allowed the safeguards to keep in step with developments in the case law of the European Court of Human Rights under Article 5. Furthermore, "a statutory definition could not simply address the complex facts in individual cases".[525] The Official Solicitor agreed, explaining that "the interpretation of Article 5 by the European Court of Human Rights is the relevant interpretation." This meant that it was not possible to freeze the definition of deprivation of liberty, as any definition would be subject to the evolving case law of that court.[526]

283.  We agree with the Government and the Official Solicitor that no statutory definition of "deprivation of liberty" is currently required. While the lack of a definition may reduce certainty, the term was intended to echo the wording of Article 5 of the European Convention on Human Rights, and the current statutory provisions are adequate to achieve this. At the same time, action is clearly needed to assist health and social care practitioners in identifying such a deprivation. We address training and awareness raising in chapter 4.

UNHELPFUL NOMENCLATURE

284.  The term 'deprivation of liberty' was itself proposed as a cause of under-use of the safeguards. The Department of Health argued that "People concentrate on saying 'deprivation of liberty' when what they should be concentrating on is the word 'safeguards'", this distracted from the purpose of ensuring "that people who in their best interest have some restrictions on their liberty … have adequate recourse and protection within the law and within the system".[527] The Mental Health Alliance advocated the term 'Protective Care' as having more positive connotations,[528] a phrase also endorsed by Browne Jacobson who suggested that the current terminology resulted in an "inherent reluctance" on the part of providers to identify a deprivation of liberty.[529]

285.  The term 'deprivation of liberty' is unhelpful, but it may not be possible to eliminate its use even with replacement provisions, given that it derives from Article 5 of the European Convention on Human Rights. Better understanding of the purpose behind the safeguards is urgently required, and we recommend that achieving this be made a priority by the independent oversight body.

THE EFFECTIVENESS OF THE RELEVANT PERSON'S REPRESENTATIVE ROLE

286.  A further difficulty reported with the application of the safeguards was the reliance on the role of Relevant Person's Representative, or RPR. Witnesses criticised the fact that the choice of RPR was left to the local authority, with reports that family members were often not appointed if they were already in conflict with the statutory body,[530] and that there was often a failure to inform an unpaid RPR of the availability of an independent mental capacity advocate.[531]

287.  Even where the role was operating as intended, problems were reported with the ability of unpaid RPRs to challenge an authorisation. A detailed illustration was provided in a submission from a private individual, MM, who recounted the experiences of an 89 year-old woman who acted as unpaid RPR for a friend. She reported feeling that "the full force of the state was battling against her" and that she faced constant suspicion and disadvantage when challenging the local authority. Her attempt to challenge an authorisation for a deprivation of liberty through the Court of Protection was described as "complex and harrowing", even with the provision of legal aid.[532] On a more positive note, Nicola Mackintosh reported that she had "experience of cases that have come to court because the RPR, on behalf of the incapacitated person, has made the application or has assisted the person to make the application to court".[533]

288.  In principle the establishment of the role of the Relevant Person's Representative has been positive. However it does not always provide an effective safeguard for P's rights when challenging local authorities. We recommend that the Government consider how the role could be strengthened in replacement legislative provisions to provide an effective safeguard.

THE EFFECTIVENESS OF THE SUPERVISORY BODY ROLE

289.  The Care Quality Commission identified variation in how supervisory bodies discharged their functions, including how they support care homes and hospitals, their relationship with safeguarding teams and how they work with advocates.[534] Professor Jones told us that "some cases indicate that DoLS has been used as an instrument of oppression, where local authorities acting as supervisory bodies have used DoLS to get their way".[535] Mr Neary said that the safeguards were "turned on [their] head" by London Borough of Hillingdon.[536]

"Safeguards were in place but Steven wasn't allowed to come home; plans were being made to move him 200 miles away; all his activities that give him his quality of life had been stopped; and his important relationships, especially with me, were being severely curtailed. There didn't appear to be anything that was happening that even remotely resembled a safeguard".[537]

290.  A potential conflict of interests was identified by Stephen Ward of the Isle of Wight Council and NHS Foundation Trust, who argued that "there is an inherent conflict of interest for [local authorities] as Supervisory Bodies and Commissioners of the care that results in deprivation of liberty".[538] However, there was evidence of good practice in the positive use of the commissioning role, provided by ADASS (see paragraphs  144-145).[539] Nevertheless, it does not appear that such an approach is widespread.

291.  There is also a possible gap in the regulatory regime, given that the Care Quality Commission does not regulate the supervisory body. The CQC recognised this and was undertaking collaborative work with supervisory bodies to improve national understanding in the absence of specific inspection powers (see paragraphs  120-124).[540]

292.  The evidence suggests that supervisory bodies are not consistently providing the safeguard intended, indicated in part by the regional variations in how they discharge their functions.

293.  We recommend that effective oversight of any future supervisory body function be provided for in the replacement provisions for the Deprivation of Liberty Safeguards.

Potential new gaps

294.  Many witnesses pointed to a gap in protection for those who may be deprived of their liberty while living in supported accommodation. This issue has become more important in recent years as a result of the policy shift away from care homes to community-based accommodation.[541] The safeguards apply only to hospitals and care homes. Deprivation of liberty of those living in supported accommodation need to be authorised directly by the Court of Protection. The Mental Health Alliance argued that those in supported living were no "less vulnerable to inadequate or abusive care, or to being deprived of their liberty, than are people in registered care homes. Indeed, they may be more vulnerable, since the actual living arrangements are not currently inspectable by the CQC and are therefore effectively unregulated".[542] This view was supported by Liberty,[543] POhWER[544] and the Law Society.[545]

295.  In response to such concerns, Mr Lamb told us that, while he might revisit this area in the future, he was "content that local authorities should seek authorisation from the Court of Protection"[546] when a deprivation of liberty was indicated in supported living accommodation.

296.  Vulnerable adults living in supported accommodation are at risk of being unlawfully deprived of their liberty because they fall outside the scope of the Deprivation of Liberty Safeguards. Although recourse to the Court of Protection is available, evidence of the barriers individuals face in accessing the Court, and of the failure by local authorities to bring cases to Court when necessary, suggests that this is unlikely to provide the safeguards intended.

297.  We recommend that replacement legislative provisions extend to those accommodated in supported living arrangements.

THE ELIGIBILITY CRITERIA AND A 'NEW BOURNEWOOD GAP'?

298.  We have touched on the criticism that the eligibility criteria are overly complex, leading to uncertainty over the relationship with the Mental Health Act 1983. Evidence suggested that this relationship, as set out in section 16A and Schedule 1A, had also given rise to a potential gap in protection described as "every bit as troublesome as that identified in the Bournewood case itself".[547] A case demonstrating this concerned a man, Dr A, detained in hospital under section 3 of the Mental Health Act, who went on hunger strike in an attempt to recover his passport, confiscated by the UK Border Agency. The court found that Dr A lacked capacity and that it was in his best interests to be force-fed, entailing a deprivation of his liberty that would normally be authorised under the Mental Capacity Act. However, as he was already detained under the Mental Health Act he was ineligible for the Deprivation of Liberty Safeguards; nor could the force-feeding be authorised under the Mental Health Act since it concerned treatment for a physical condition with insufficient connection to his mental disorder. The case was resolved through the use of the inherent jurisdiction of the Court.

299.  Serjeants' Inn Chambers argued that this made a clear case for the reform of the eligibility criteria "permitting in appropriate cases the deprivation of liberty of a person lacking relevant capacity, for the purpose of medical treatment which is separate from the person's mental disorder".[548] This would be sufficient to close the gap. A similar recommendation was made by the Official Solicitor.[549] Mr Lamb disagreed, argueing that, in light of the inherent jurisdiction of the Court, "there is no gap which requires filling".[550]

300.  We consider that a 'new Bournewood gap' has been inadvertently created by the attempt to prevent overlap with the Mental Health Act 1983. We recommend that replacement legislative provisions close this gap.


465   Q 25. Back

466   HL v The United Kingdom [2004] (2005) 40 EHRR 32. Back

467   Q 49. Back

468   Ibid. Back

469   Clare, I.C.H., Redley, M., Keeling, A., Wagner, A.P., Wheeler, J.R., Gunn, M.J. and Holland, A.J., Understanding the interface between the Mental Capacity Act's Deprivation of Liberty Safeguards (MCA-DoLS) and the Mental Health Act (MHA), Cambridge Intellectual & Developmental Disabilities Research Group, Department of Psychiatry, University of Cambridge, July 2013, p. 68. Back

470   Q 152. Back

471   Ministry of Justice and Department of Health, Impact Assessment of the Mental Capacity Act 2005 deprivation of liberty safeguards to accompany the Code of Practice and regulations, May 2008, p. 9. Back

472   Ibid. Back

473   Health and Social Care Information Centre, Mental Capacity Act 2005, Deprivation of Liberty Safeguards Assessments (England): Annual Report, 2012/13, August 2013, p.9 http://www.hscic.gov.uk/catalogue/PUB11379/DoLSAnnualReport201213.pdf.  Back

474   Alzheimer's Society. Back

475   Health and Social Care Information Centre, August 2013, Op. Cit., p.11. Back

476   Q 34. Back

477   Q 241. Back

478   Q 24. Others who expressed concerns included: Browne Jacobson Solicitors LLP; Professor Phil Fennell and Dr Lucy Series. Back

479   Health and Social Care Information Centre, August 2013, Op. Cit., p.16. Back

480   Health and Social Care Information Centre, August 2013, Op. Cit., Op. Cit., p.20. Back

481   Mental Health Alliance. Back

482   Mencap. Back

483   Care Quality Commission. Back

484   Care Quality Commission, January 2014, Op. Cit., p. 18. Back

485   Q 15. Back

486   Q 268. Back

487   Q 35. Back

488   Joanna Burton. Back

489   Q 95. Back

490   Articulate Advocacy. Back

491   Q 119. Back

492   Advocacy in Action. Back

493   Alzheimer's Society. Back

494   Housing and Social Care Services, London Borough of Camden. Back

495   MCA and MCA DoLs' Team of Cambridgeshire County Council. Back

496   Letter from Norman Lamb MP, Minister for Care and Support, 9 December 2013. See appendix 6. Back

497   Cambridge Intellectual and Developmental Disabilities Research Group, Department of Psychiatry, University of Cambridge. Back

498   Q 25, Professor Jones. Also supported by: MM; South West IMCA Group; British Association of Social Workers. Back

499   Health Select Committee, Post-legislative scrutiny of the Mental Health Act 2007 (1st Report of Session 2013- 14, HC 584), para 106
http://www.publications.parliament.uk/pa/cm201314/cmselect/cmhealth/584/584.pdf. 
Back

500   Q 293. Back

501   The Law Society. Back

502   Q 260. Back

503   Care Quality Commission. Back

504   Irwin Mitchell LLP. Back

505   3 Counties IMCA Service. Back

506   Kent and Medway MCA Local Implementation Network; 3 Counties IMCA Service; Advocacy Support Cymru; Q 87 (Beverley Dawkins, Mencap). Back

507   3 Counties IMCA service. Back

508   Bracknell Forest Council; Age UK Devon; Housing and Social Care Services, London Borough of Camden; Lancashire County Council DoLS Team. Back

509   Clare, I.C.H., Redley, M., Keeling, A., Wagner, A.P., Wheeler, J.R., Gunn, M.J. and Holland, A.J., Op. Cit. July 2013, p. 70. Back

510   For example, Serjeants' Inn Chambers; Richard Tucker (Rotherham, Doncaster, and South Humber Mental Health NHS Foundation Trust); Q 35. Back

511   Derek Boothby AMHP/ BIA. Back

512   Camden Safeguarding Adults Partnership Board. Back

513   Professor Phil Fennell and Dr Lucy Series. Back

514   Serjeants' Inn Chambers. Back

515   Serjeants' Inn Chambers; Official Solicitor to the Senior Courts. Back

516   Alzheimer's Society; Bracknell Forest Council; The College of Emergency Medicine; Liberty. Back

517   Mental Capacity Act 2005, section 64 (6). Back

518   Human Rights Act 1998,section 2. Back

519   Q 41. Back

520   Liberty. Back

521   Cheshire West and Chester Council v P [2011] EWCA Civ 1257. Back

522   British Psychological Society; Irwin Mitchell LLP; Browne Jacobson Solicitors LLP. Back

523   Q 263. Back

524   Ministry of Justice and Department of Health. Back

525   Ibid. Back

526   Q 271. Back

527   Q 14. Back

528   Mental Health Alliance. Back

529   Browne Jacobson Solicitors LLP. Back

530   Mr and Mrs E (the carers for HL who brought the Bournewood case); Victoria Butler-Cole, Neil Allen, Andrew Bowmer, Julie Cornes, Charlotte Haworth Hird, Laura Hobey-Hamsher, Laura Jolley, John McKendrick, Alex Ruck Keene, Polly Sweeney, Rachel Turner and Paula Scully. Back

531   Ibid.  Back

532   MM. Back

533   Q 35. Back

534   Care Quality Commission. Back

535   Q 25. Back

536   Q 260. Back

537   Mark Neary. Back

538   Stephen Ward (Isle of Wight Council and NHS Foundation Trust). Back

539   Association of Directors of Adult Social Services (ADASS). Back

540   Care Quality Commission. Back

541   The Law Society; London Borough of Newham Adults Social Care; British Psychological Society. Back

542   Mental Health Alliance. Back

543   Liberty. Back

544   POhWER. Back

545   The Law Society. Back

546   Letter from Norman Lamb MP, Minister for Care and Support, 9 December 2013. See appendix 6. Back

547   Victoria Butler-Cole, Neil Allen, Andrew Bowmer, Julie Cornes, Charlotte Haworth Hird, Laura Hobey-Hamsher, Laura Jolley, John McKendrick, Alex Ruck Keene, Polly Sweeney, Rachel Turner and Paula Scully. Back

548   Serjeants' Inn Chambers. Back

549   Q 272. Back

550   Letter from Norman Lamb MP, Minister for Care and Support, 9 December 2013. See appendix 6. Back


 
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