I spent yesterday at the city farm, enjoying the first fully warm and sunny day of the year, looking at piglets and being grateful I only had one toddler to look after and not ten. (No, this isn’t some exciting new research venture; I work part time now).
As such, I have only skimmed the Law Commission’s very important proposals for a system of ‘Liberty Protection Safeguards’ to replace the dreaded ‘deprivation of liberty safeguards’. But I’ve now been asked by so many people what I think, and the answer ‘ask me in a few months for my considered opinion’ seems unfair since I’ve long been agitating for reform in this area. So, somewhat tentatively, here are my only-partially-digested initial thoughts to my skim read of the report…
Firstly, I want to put what I am about to say in context. The Law Commission faced an invidious task, to devise a detention framework that encompassed perhaps larger numbers of people and a larger range of circumstances of care than any hitherto seen in UK law and perhaps the world. It had to do so in a context of austerity, and where views in the health, social care and legal sectors remain sharply divided over the implications of the Supreme Court’s ruling in Cheshire West. I wouldn’t want that job, and frankly hats off to those who undertook this project.
There is so much to think and say about the Law Commission’s proposals that I can’t possibly cover it all here. I expect I’ll be thinking about this report and re-reading it for many years hence. In my response to the Law Commission’s consultation I focused on the appeal mechanism, their proposals relating to the United Nations Convention on the Rights of Persons with Disabilities, and the role of the Care Quality Commission (CQC) in having regulatory oversight of the scheme (or not). You can read my submissions, typos and all, here: 2015 10 26 Law Com DoLS consultation (in my defence for all the embarrassing typos, I was heavily pregnant at the time…).
One major change to the final scheme scheme from the Commission’s initial proposals is a shift from a system of automatic court review to realise the Article 5(4) rights of detained persons, to a system whereby advocates or appropriate persons are appointed to assist the person in exercising their rights of appeal, and must support them to do so if they wish to challenge their detention, regardless of their prospects of success. I know the majority of people supported an automatic review, and it sounds great on paper given the difficulty
many almost all people subject to DoLS have in exercising their appeal rights, but I argued against this in my consultation response. This was for a number of reasons, including that many ‘Cheshire West’ detained people who aren’t actually objecting, and nor are their families, could very well resent being dragged into an appeal. Moreover, in order to make such a widespread appeal mechanism fiscally possible, the impact assessment was based on the assumption of only access to means tested legal aid. This would have meant that whilst some people would qualify for legal aid for an appeal they didn’t want, many thousands more would not and so some people would have had to fund an appeal when they were objecting and some might even have had to pay for an appeal when they were not. This raised serious questions about whether some people would struggle to appeal because of the costs, and also about the possibility of satellite litigation for those managing the person’s property and affairs about whether they considered these legal costs to be in the person’s ‘best interests’.
The new scheme is based on a system of supports to enable the person to appeal which should filter out those cases where the person is objecting. This isn’t quite what I argued for in my submission – I argued that the responsiblity to refer cases to court where the person or their family is objecting should rest with the local authority, with advocates and ‘appropriate person’s providing a secondary layer of referrals – but I think overall its preferable to a scheme that costs millions (billions?) of public and private funds for appeals that the majority of people do not want. I know that’s not going to be a popular view among some, particularly lawyers, but if you do think ‘what?!! I thought she wanted better rights of appeal!’ then please do read my much more detailed submission to the Law Commission and post your comments after that.
Another quick comment on appeals – the question of the destination for appeals, whether the Court of Protection or tribunal, has been left wide open. This is because it raises many tricky jurisdictional questions – both in terms of separating out ‘detention’ from wider MCA matters, and also questions about devolution (the mental health tribunals are devolved in Wales; the CoP is not). In our recent report on participation in the CoP we gave very careful consideration to this, and argued back and forth about it for quite some time. Ultimately we concluded that the difficulty of separating out ‘detention’ from other MCA questions was likely to give rise to another horrendous interface issue, and considerable satellite litigation. We argue for the COP rules to essentially be ripped up and start again to create a more tribunal like framework that places P’s participation at its core. Whether this will happen, or we will continue to see a costly and alienating court system, populated by an army of professional representatives filtering P’s views to a judge sitting on a bench, but with P nowhere in sight, remains to be seen. This is very much up for grabs and I strongly encourage those campaigning for the rights of P to sit up and pay attention to these (frankly quite tedious) questions about court rules and processes. I don’t want to brag, but our report on participation might be a good place to start.
Article 12 CRPD
The Law Commission also addressed some of the questions raised by Article 12 of the UN Convention on the Rights of Persons with Disabilities (CRPD). Article 12 (CRPD) is said to require a ‘new paradigm’ of legal capacity that shifts away from restrictions on legal capacity and ‘best interests’ decision making, towards an approach based on supporting the person to make their own decisions and exercising legal capacity in accordance with their ‘will and preferences’. There is a growing consensus – among UK academics at least – that the Mental Capacity Act 2005 does not establish a strong enough scheme for supported decision making and that its best interests decisions do not place a sufficient emphasis on the ‘will and preferences’ of the person. The Law Commission’s consultation analysis suggests that this view is also shared by many of those caring for adults with mental disabilities. The Commission has proposed a modification to the ‘best interests’ principle that places a stronger emphasis on the wishes and feelings of the person. It has also created a power that will enable the English and Welsh governments to introduce regulations in the future to establish a more systematic framework for supported decision making. Although they do not go as far as some disability rights advocates want, and I personally wanted the term ‘best interests’ evicted from the Act because of its paternalistic baggage and its tendency to be interpreted in line with professionalised notions of medical best interests or legal best interests, these developments are an important indication that Article 12 CRPD is starting to have an impact on UK law.
Restricting the power of health and social care professionals under the MCA?
There are many features of the detention scheme that are worthy of comment, but I want to finally draw attention to the Law Commission’s ambitions for Article 8 ECHR. It is increasingly recognised that many decisions made under the MCA engage Article 8 rights to home, family life, privacy and bodily integrity. The Court of Protection has increasingly required disputes concerning these matters to come to court, to try and insert some kind of procedural safeguard onto decisions with serious consequences for people’s lives that would otherwise be made with very little independent scrutiny. Yet the boundaries of this duty to come to court are unclear – for example, it has been unclear whether a local authority can – acting under the ‘general defence’ of the MCA – decide that a person should no longer have any contact with a loved one whom they suspect of abusing them or otherwise being a problematic influence on their life. The Law Commission’s 2015 proposals were for a fairly complex network of safeguards around decisions such as this; this ambition has been abandoned due to understandable concerns about cost and complexity and replaced with a requirement that certain ‘relevant decisions’ require a written record of the assessments and decision making under the MCA in order for professionals to rely upon the ‘general defence’ of s5 and s6 MCA. These ‘relevant decisions’ include moving the person to long-term accommodation; restricting the person’s contact with others; the provision of serious medical treatment; the administration of “covert” treatment; and the administration of treatment against the person’s wishes.
This proposal raises the important question of whether a written record for such serious interferences with a person’s Article 8 rights is sufficient to guarantee the fair process of decision making required under the ECHR. This is especially important in a context where the individual and their families experience significant problems accessing justice to challenge such decisions. I’ll be honest; these proposals make me nervous. Are we really prepared to allow local authorities to make decisions that might, for example, result in a husband and wife or parent and child being not having contact for the rest of their lives, or a person having serious medical treatment against their will, simply on the basis of a written record? Who is actually going to look at that record? What use is a record if the events the person opposes have already taken place?
I’ve spent a lot of time recently reading the Law Commission’s original proposals from the 1990s for the MCA, and I am not convinced that these particularly coercive uses of the ‘general defence’ of the MCA are what they intended. In numerous places the Law Commission says their ‘general defence’ (at that time, ‘general authority’) wasn’t intended for coercion except in emergencies, and their draft of what became s6 MCA really reflects this – but was modifed by the government. They had proposed a separate framework of public law powers for these more intrusive interventions, which were unceremoniously abandoned by the government, with no real explanation (and incredibly frustratingly, all the consultation responses to the 1997 Who Decides/Making Decisions consultations have been lost, so we’ve no record of what people said about it at the time). I am not convinced these uses of the general defence, highlighted by the Law Commission, have the requisite constitutional legitimacy for such intrusive interferences by the state (and agents acting under state ‘authority’) as they were not explicitly debated in Parliament. The potential for ‘violence’ under the MCA is really it’s dark and dirty secret, that nobody wanted to discuss when it was developed or passed into law, that are barely address in the Code of Practice (in contrast with the MHA Code) and that’s really why we’ve ended up in this mess of trying to shove procedural safeguards onto the Act a decade later.
In our recent report on participation in the Court of Protection, we argued that these issues raise such fundamental human rights and constitutional questions – not to mention the potential for significant public controversy – that there should be a proper public consultation on the decisions that can be taken by health and social care professionals under the ‘general defence’ and whether alternative procedural safeguards are needed. Whilst I understand the Law Commission was seriously constrained by the climate of austerity in the kinds of safeguards it could propose here, I am concerned that in a context in which disabled people and their families are realistically unlikely to be able to challenge these decisions in the courts , many will feel these proposals still hand significant power to professionals with little oversight and few ‘brakes’. My view is that if families and disabled people, and their representative organisations, share my nervousness about the extent of the authority of health and social care professionals under the MCA’s existing mechanisms and the Law Commission’s proposals, they should campaign for just such a consultation. If they don’t do so now, it is very doubtful the opportunity to reconsider this issue will arise again for a generation (especially since Parliamentary time is likely to be taken up with the consequences of Brexit for probably several decades hence).
One possible source of oversight and scrutiny that might have been effective would have been to expand the regulatory jurisdiction of the Care Quality Commission to examine the decisions of local authorities. Until 2010 this was a core function of the social care regulator in England. Yet a political decision has been taken that this represents an unnecessary or undesirable ‘regulatory burden’, regardless of the personal cost to those reliant on local authority care, and the Law Commission’s report has not reversed that decision.
So, this really is a first pass over the report and as such I might have missed some important and noteworthy features. I really wanted to say more about the propoals for detention safeguards in domestic settings, which also make me nervous, but I’ll come back to that another time.
I think the Law Commission has to be commended for the very important listening (and thinking) exercise it undertook, which was sorely missing from the development of the DoLS. I really think this consultation and report provides a firm basis for a scheme that offers better protection and greater public legitimacy. Yet there are areas that raise fundamental questions about the relationship between individuals and the state, the powers of professionals under the Act, and the increasing regulation of all concerned. We all need to go away and examine these proposals carefully, to think and debate in a considered and constructive way, and think about how we proceed from here.