The best element of the response is that they have set up a Mental Capacity Act Steering Group to review the evidence heard by the Committee. This is great, and hopefully it might go some way towards restoring the vacuum of leadership in relation to the Mental Capacity Act and the deprivation of liberty safeguards, which has been a recurring theme in evidence to the House of Lords Select Committee.
The government hopes that ‘improvements in the understanding and use of the Mental Capacity Act 2005 amongst health and care professionals will support improvements in the use of the Deprivation of Liberty Safeguards’. Obviously, since the DoLS are part of the Mental Capacity Act 2005 and you cannot comply with the DoLS without also complying with the Mental Capacity Act, it is necessarily true that improvements in understanding the MCA should lead to improvements in understanding the DoLS. However, this line – that if you can just grasp the MCA you can grasp the DoLS – to me misses the point that the DoLS are also a framework that is committed to complying with Article 5 ECHR. And complying with Article 5 ECHR makes requirements over and above the MCA, which I fear many people struggle to comprehend. In particular, the necessity of ensuring that people can exercise their appeal rights (on which, see MH v UK). All too often people apply the logic of the MCA to interpreting people’s rights of appeal (you can appeal if it’s in your best interests to do so), when this is absolutely not what Article 5 says, and there is a pressing need to address that misunderstanding throughout the DoLS system.
I am of the view that the DoLS system needs a radical legislative overhaul to address the issues around the appeal mechanism, conflicts of interest and it’s sheer complexity and scope for arbitrary application (how ironic that the purpose of Article 5 is the protect against arbitrary deprivation of liberty, when there is little about the DoLS which is not arbitrary). Failing that, I think we need a revised code of practice to offer guidance which is updated to take into account the growing number of domestic and ECHR authorities on how to operate the DoLS. As I wrote about MH v UK, I think the current code actively discourages ECHR compliance by implying that involvement of the courts is at the discretion of IMCAs and RPRs, and only where ‘necessary’ (whatever that means). Yet the government in its response only says that it plans to revise the Mental Health Act code of practice, with regard to the interface with the Mental Health Act. I am not saying that is not also required, but I hope they will also address the problems with the DoLS code as well.
The government plans to work with NHS England to support action to implement the DoLS. I am not the first person to wonder – why NHS England, when the DoLS are administered by local authorities and the majority of applications relate to care homes? What happened to the Local Government Association, whose system of peer review was supposed to replace the CQC’s performance reviews which the government summarily scrapped – what work are they doing on the DoLS? If the government were serious about working out what was going wrong with the DoLS, they could look at whether the CQC has powers to review the performance of local authorities who make up the outliers in terms of applications, reviews and s39D referrals. Instead, the government appears minded to limit yet further the ability of CQC to review the performance of local authorities in relation to adult social care.
In fairness to the government, they may be waiting to see what the House of Lords Select Committee and – if they do still plan to conduct an inquiry – the Equality and Human Rights Commission, have to say about DoLS before deciding how to proceed. No doubt they are also waiting to hear the judgment in Cheshire. With so much uncertainty, it is difficult to plan.