A while back I had a little whinge about how few disability and human rights NGO’s were campaigning about the paucity of safeguards under the Mental Capacity Act 2005 (MCA) and the shocking problems with the deprivation of liberty safeguards (DOLS) in particular. Behind the scenes, I think there is growing concern about the MCA and the risk of unchecked decision making powers it affords under the ‘general authority’ (now called the ‘general defence’). I only just spotted this, so apologies for the delayed response, but Liberty have written to the Joint Committee on Human Rights and called upon them to open an ‘overarching inquiry’ into the MCA – and in particular to its paucity of safeguards. They have also drawn attention to the direction of travel of DOLS case law, and expressed concern at the narrowing of the definition of deprivation of liberty. I fervently hope that the JCHR will consider taking up this call, and would encourage other individuals and organisations who are concerned about the inadequacy of safeguards for decisions made under the MCA and the serious problems with the DoLS to consider writing letters in support of Liberty’s proposal.
A fundamental problem with the MCA, identified by the Making Decisions Alliance way back when it was undergoing its parliamentary passage, is that:
‘…the draft Bill currently lacks any accessible mechanisms by which an individual may challenge a formal or informal assessment of capacity made about them. Although an individual assessed as lacking capacity can make an application to the Court of Protection to challenge any declaration made by the Court on the basis of this assessment (40, 1, a), the Bill does not explain how Ministers envisage that a person who may have a significant mental disorder can be supported to make such an application. This is another reason why the MDA believes that any individual assessed as lacking capacity who becomes the subject of the formal powers set out in the draft Bill should have the right to access independent advocacy.’
The government responded to this concern by introducing what we now know as the Independent Mental Capacity Advocacy (IMCA) service. With all due respect to IMCAs, I don’t think anybody would claim that they alone can satisfy this concern. IMCA referrals have never been as high as the impact assessment anticipated, even with the addition of new roles for care reviews, safeguarding and the DOLS. Furthermore, IMCAs are not really plugging this ‘access to justice’ gap – very, very, very few IMCA referrals result in an application to the Court of Protection, or even any kind of formal complaint. We need much stronger guidance on when IMCAs should be challenging decisions or initiating legal action, and to put it bluntly, I think they might need a kick up the backside on DoLS. Under s39D MCA they are the mechanism that is supposed to ensure a person is able to exercise their Article 5(4) rights of appeal, yet the tiny trickle of s21A MCA appeals suggests they are not performing this function effectively, for reasons that are not entirely clear.
In any case, IMCA referrals are reliant upon decision makers recognising and respecting the need for a referral – so they’re an ineffective safeguard against those who don’t understand, or don’t comply with, the provisions of the MCA. They aren’t provided where people have family and friends, and family and friends really, really, really struggle to use the Court of Protection as a way to challenge capacity assessments and best interests decisions. In any case, suppose everybody – family and professionals alike – are agreed that a person lacks capacity and a particular course of action is in their best interests – surely, at law, that person must still have a residual right to appeal against decisions which constitute a major interference in their rights? Are they supposed to initiate litigation without any support?
When the MCA was first conceived of, and the Law Commission undertook its research back in the 1990’s, they made two critical decisions. The first was a preference for ‘informality’ of approach, a framework which however fine and ‘progressive’ its principles (and in the wake of Article 12 CRPD even that is up for debate now) afforded carers and professionals huge discretion over ‘capacity’ and ‘best interests’ matters with no procedural safeguards. The second decision was despite ‘a very loud and clear call for the jurisdiction to be locally based and easily accessible’ (Law Com 231, [10.4]), to opt for a court system. Admittedly it is a flexible court system, and it does have some regional courts, but in terms of health and welfare disputes it was only ever set up to deal with a couple of hundred cases a year (see the Impact Assessment, ). That is very hard indeed to square with the idea that any person who wants to challenge a capacity assessment and best interests decision should be able to do so in court. I can’t see how – for major life changing decisions like medical treatment, where a person lives, contact with family and so on – anything less than an easily accessible mechanism for challenging best interest decisions could satisfy the requirements of Articles 6 and 8 of the ECHR. If the JCHR opened an inquiry, we could put all our cards on the table and have a serious conversation about whether this system is adequate for protecting the rights of people with mental disabilities in England and Wales today.