One of the recurring themes that has come up before the House of Lords Select Committee on the Mental Capacity Act 2005
(MCA) is a lack of redress for non-compliance with the MCA and the deprivation of liberty safeguards (DOLS). The Lords have asked on several occasions whether there is a need for a ‘bigger stick’. A fortnight ago, Alex Rook from Irwin Mitchell Solicitors told the Committee
that part of the problem is that:
…the Court of Protection is …a forward-looking court, which is generally a good thing. When you come to the court, the question before it is: what is in this person’s best interests? The court is often described as being inquisitorial rather than adversarial. You do not win or lose: you just establish what is in this person’s best interests. That almost acts as a disincentive to look at what has happened in order to get there in the first place. I am sure as well, partly due to resources and time, that the court is quite often quite reluctant to look at what has gone wrong rather than at how we solve it. That is perhaps in contrast to a lot of other civil proceedings, where you are generally looking backwards and saying, “What has happened there? Was it right or was it wrong?”.
He gave an example of a case where this was an issue:
…we acted for an elderly lady who went from her own home into hospital and was then moved from hospital into a care home. Then, once she was in the care home, her authorisation of the deprivation of liberty was made. That was plainly too late. The court tends to say that is too late to express some disappointment at that, but it does not go much further, because the court is actually looking at the primary question: should she be in that care home or should she go home? There is not really emphasis in the court to actually look at that; non-compliance has already taken place, if that makes sense.
As Elmari Bishop said, in her evidence to the Committee, there need to be both internal drivers (better training, management buy-in, support of front line workers) and external drivers (penalties for non-compliance) to improve compliance with the MCA and the DOLS. Yet these often appear few and far between. This is especially the case in relation to judicial remedies for compensation such as a claim under the Human Rights Act 1998 or for a declaration of past unlawful action in the Court of Protection, in no small part because of difficulties with legal aid (in Alex Rook’s evidence he gives a very cogent explanation of this problem).
There are growing signs of CQC inspectors taking action in relation to non-compliance with the MCA and the DOLS, although there is a great deal of work to be done to improve the understanding of their own staff (as David Behan said in his evidence to the Committee
). As I’ve written before,
another potential avenue for redress of past non-compliance is the Ombudsmen. The Ombudsmen have a somewhat wider remit than the Courts, as their task is to examine maladministration. This week the Local Government Ombudsman and the Parliamentary and Health Services Ombudsman has published a finding of maladministration
in relation to a case which involved the use of DoLS, involving an NHS Trust and the local authority. Thanks very much to Akib Qadir for sending me the link.
The case concerned a couple (Mr and Mrs X) and their son (Dr X). Mr and Mrs X both had dementia, and their son – Dr X – had arranged home care for them. The professionals involved had concerns about this care, but instead of clearly communicating that to him they held a ‘professionals only’ meeting where they decided that Mr X would not be allowed to return home and to apply for an authorisation under the deprivation of liberty safeguards to that effect. Dr X was very distressed about this decision and the failure to communicate clearly to him their concerns about the care which had had arranged. Later on, his mother was sent a report which communicated a decision that she too should live in a care home – separately from her husband – which caused her great distress. The focus of the Ombudsmen’s findings was the communication breakdown between professionals and Dr X, the decision to exclude him from meetings where decisions were being made, and the resultant injustice upon his parents who endured a period of time with inadequate care: ‘They suffered a needless loss of dignity during that time.’ One of the important lessons from the case was that practitioners with concerns about the exclusion of family must be prepared to challenge that practice, even if it means standing up to medical practitioners (another recurring theme in the House of Lords Select Committee evidence is the difficulty non-medical practitioners have in standing up to medical practitioners where they do not comply with the MCA and jump to conclusions about capacity and best interests or exclude the person and their family).
The case itself, although interesting, carries no new lesson which public authorities should not have already learned from Neary
about clear communication and involvement with families in care planning decisions. Unlike the Neary
case, the end result appears to be that Mr and Mrs X did not remain in their preferred living arrangement, and there is little discussion about the actual end result. Presumably this is because it did not form part of the complaint, but also because if the concern is with present
arrangements the Court – with it’s powers to make declarations as to capacity and best interests – would be a more appropriate forum. But it is heartening to see that the Ombudsmen are prepared to look at issues which the Court may not, about past wrongdoing, as this may provide another critical external driver for improving practice.