Reading the Mental Capacity (Amendment) Bill on the train

I’m on a train heading home from Leeds after a really exciting, challenging, and thought provoking workshop that I helped to set up with CHANGE and Advonet, looking at how we can bring together people with learning disabilities and those working within the services and agencies that they use, to think about supported decision making. One of the greatest challenges of this workshop was tackling the huge power imbalances that arise around language, and the ease with which we lapse into jargon and service speak that alienates the people who don’t speak this language. We certainly didn’t do this perfectly, but it was an attempt to find new ways of working with that, and we all I think learned a lot.

So it was with a bit of a sinking feeling that I settled down to read the new Mental Capacity (Amendment) Bill that had its first reading before Parliament this week. The Bill will have a profound effect on the lives of many people with learning disabilities and cognitive impairments, as well as those close to them. There was something a bit peculiar about the timing of the Bill. A press release appeared (from which we learn they are called the Liberty Protection Safeguards, as the Law Commission proposed), and some hours later the bill was published on the Parliament website. But there was no accompanying explanatory notes, equality or resources impact assessments, let alone an easy read document explaining it to the very people whose human rights are affected by this  (Explanatory Notes and impact assessments now available here). This didn’t feel like a great start, but let’s hope those documents are forthcoming soon as there are a lot of unanswered questions about this legislation.

With apologies for the jargon, I’ll attempt a less inaccessible version of this in the future… (if anyone wants to collaborate on that give me a shout).

(If you want to read what other have to say about it, see these helpful headlines from Alex Ruck Keene, Roger Hargreaves has kindly given me permission to post a comment he’s put on an MCA Facebook group at the bottom of this post.  Edge Training have produced this helpful table comparing the LPS scheme and the DoLS. The 39 Essex St report gives a characteristically useful overview. I’ll add others as I come across them and keep blogging as I read through the supporting information, mostly on trains…)

Here’s a fairly whistlestop tour of my initial thoughts on the proposals. I won’t deny that I’m disappointed and quite concerned about parts of this, and I hope that this time around Parliament really raises its game in holding the government to account and getting some needed amendments in to address some of these issues.

Let’s just start with the self-evident observation that this legislation hasn’t come close to realising the aspirations of the CRPD, and arguably takes us further away from it than we were before. I’m also of the view that in many ways it provides even worse protection more familiar ECHR rights than the DoLS did.

The ‘general defence’

I’m mainly going to consider the proposals through the lens of Article 5 ECHR – the right to liberty and security of the person. But my first observation is that the Article 8 issues that were raised by the Law Commission, and concerns relating to the non-compliance of the Mental Capacity Act 2005 with the CRPD, appear to have been dropped altogether. There is no attempt here to restrict or impose limits upon the ‘general defence’ which indirectly hands extensive quasi-powers to health and social care providers to make decisions with huge implications for the rights of disabled people and their families. Not even the Law Commission’s modest proposal to require some formal documentation accompanying life changing decisions like restricting contact with a person’s friends or family, deciding someone lacks the capacity to consent to sex, or imposing treatment on them that they (or those close to them) object to.

Best interests

Another disappointment was the decision not to include the Law Commission’s (again modest) proposal to place ‘particular weight’ on the wishes and feelings of the person when making best interests decisions. It’s my belief that best interests is a concept with such paternalistic baggage that as long as we keep the terminology we’ll keep doing the same paternalistic things, no matter what the law says in its fine technical detail. It’s also my belief that there should be a clear hierarchy of considerations with our best understanding of the person’s wishes and feelings at the top of that. The Law Commission’s proposal to place ‘particular weight’ on the wishes and feelings of the person gained widespread approval at consultation, so why isn’t it in the bill?

We don’t know why because of the lack of any accompanying paper or explanatory notes, but my guess is that figures in this government and the civil service who recall the Parliamentary debates triggered by the Mental Capacity Bill in 2004/5 are wary of opening up this can of worms. Whilst for most people it’s fairly obvious that the person’s own wishes and feelings are the most important part of the equation, when the MCA was going through Parliament a very vocal pro-life lobby, including parts of the media and the churches, and indeed many Conservative backbenchers, argued that it permitted euthanasia by the back door. Several Parliamentarians argued that ‘best interests’ gave too much sway to personal autonomy, and the Labour government of the day responded that it was an objective test. Given the precarity of this current government and the volatility of the current political system (and recalling that many of the most vociferous critics of the MCA are now prominent Brexiteers and pro life issue are already unsettling the uneasy alliance between the Tories and the DUP…) perhaps nobody wanted to go down this road again. It’s a shame. And if nobody in Parliament steps up to table an amendment, I suspect it will be a very long time before the opportunity presents itself to tackle this again. Perhaps some of the Lords who sat on the House of Lords Select Committee, or some concerned with disabled people’s human rights, might consider action on this front…

Whilst we’re on the subject of best interests, this no longer forms part of the criteria to be detained under the Mental Capacity Act. Instead, the criteria are that the person must be over 18 (so no children, contrary to the Law Commission’s proposals to include 16 and 17 year olds), they must lack ‘capacity to consent to the arrangements’ and be ‘of unsound mind’. In addition, the arrangements must be ‘necessary and proportionate’ (to what, we are not told).

A few thoughts.

Firstly, I understand the Goldilocks logic of defining the scope of the framework in terms of Article 5(1)(e), hence the language ‘of unsound mind’, but this is dated terminology that is offensive and stigmatising. This isn’t just language in a statute, people will learn that this is the outcome of an assessment that is about them or those close to them. If we thought ‘mental incapacity’ or ‘mental disorder’ was bad, this is surely worse. I would be surprised if dementia and learning disability organisations were comfortable with this.

Secondly, because we’ve dropped best interests (flawed as it is) there’s no reference to the wishes and feelings of the person in the criteria themselves. There is a requirement to consult with the person and others about their wishes and feelings, but any consideration of their values and beliefs, or factors they would consider if able to, or references to their past views, have been dropped from this consultation duty. And the information about wishes and feelings just dangles above a void – what are assessors supposed to do with it? How does this relate to necessity and proportionality? Is there a threshold above which we can override their wishes and feelings, or is this information just nice to know?

Supported decision making

And what of the Law Commission’s proposal that we follow the lead of many countries around the world and include in the MCA a framework allowing people to make formal support agreements? Potential benefits of this would be more recognition by third parties of those chosen by the person to support them in making decisions (no more booting them out of capacity assessments, for example, or denying them access to information they need to support the person to make a decision), clarity around the responsibilities of supporters and a degree of regulatory oversight in case of problems arising.

The Bill is silent on this, but there is a rather peculiar power created by the Bill which seems to give the Secretary of State very broad powers to make regulations on just about any matter under the MCA. I’ve never actually seen a power to make regulations this broad – has anyone else? Conceivably this could be used to make supported decision making regulations, but I’m not clear that this is its purpose. My suspicion is that those drafting the Bill suspected there might be a number of holes in it that needed patching, and rather than having to return to Parliament for more legislation (when the reality is Brexit will be eating up all Parliamentary time for the foreseeable future), they thought we could fix most problems that might arise through regulations. Perhaps it’s a sensible step, but I’d be interested to know what constitutional lawyers think about these broad Henry VIII powers.

‘No refusals’

One of the key features of the Mental Capacity Act was that you could nominate a person to make health and welfare decisions on your behalf (a Lasting Power of Attorney) and make an advance decision refusing treatment. Under the DoLS, a detention can’t be authorised if an appropriately empowered attorney (or deputy) refuses to agree to the arrangements, or if the purpose of detention is treatment which is prohibited by an advance decision refusing treatment. There’s nothing in the LPS scheme to suggest an advance decision could be overridden, but it seems to substantially weaken the powers of attorneys and deputies to refuse deprivation of liberty relating to care and treatment on behalf of the person. I can’t see anything in there other than a duty to consult with them, which suggests they could block authorisation.

If that sounds radical, consider that the nearest relative still has powers to block admission under some parts of the Mental Health Act and to discharge from admission, and if the hospital doesn’t like it they need to apply to court to remove the nearest relative. There’s no discussion of why a person who has been chosen by the individual to make decisions for them have suddenly lost this power under the LPS scheme.

Update (10 July): the Explanatory notes say:

‘Schedule AA1 applies to arrangements enabling care or treatment to be provided; it does not apply to the direct delivery of the care and treatment (this is addressed elsewhere in the MCA: see sections 5 and 6). For example, Schedule AA1 could apply to arrangements to ensure that a person is safely returned to a particular care home where they are receiving care and treatment in the event that they have wandered from the care home. The delivery of the person’s care and treatment at the care home would be governed by section 5 of the MCA.’

This means that presumably an authorisation under the LPS could not be used to authorise arrangements relating to care and treatment that a person’s Lasting Power of Attorney has refused on their behalf (if they have authority for health and welfare) or treatments that are prohibited by an advance decision refusing treatment.  This is good, although I think it could be clearer on the face of the Bill that this is the case.

Article 5

The whole point of this exercise is that we are supposed to be creating a framework that complies with Article 5, the right to liberty and security of the person. Whether or not you think that ‘deprivation of liberty’ is the best way to think about the problems around disempowerment, restriction and human rights violations in social care, this is in theory what the legislation is supposed to be doing. But some fairly basic ingredients of Article 5 seem to be missing.

Rights to information

One of the most important parts of Article 5 ECHR is the right to be informed of the reasons why you have been deprived of your liberty (this is Article 5(2)). Case law has said that this should be in language accessible to the person, and if the person isn’t likely to understand it, then it should be communicated to a representative on their behalf. The reason why this information is so important, is because if you don’t why you are being detained (or those representing you don’t), then you can’t challenge it. And if you can’t challenge it, then this undermines the entire point of Article 5 safeguards, which are about limiting arbitrary power through a system of checks and balances.

The DoLS contained quite a complex system for rights to information. If the supervisory body granted a standard authorisation they had to give a copy of the authorisation and assessments to the person and their representative, any IMCA representing the person, as well as ‘every interested person consulted by the best interests assessor.’ Similarly, if the person is subject to an urgent authorisation, issued by the hospital or care home pending assessments by the supervisory body, they must give copies to the person and any IMCA if they have one. There are also duties on the care home/hospital to ‘take such steps as are practicable to ensure that the relevant person understands’ the effects of the authorisation, ‘the right to make an application to the court to exercise its jurisdiction under section 21A’ (i.e. to ‘appeal’ the authorisation in court), to request a review or have an IMCA appointed.

I don’t know if I’m missing something, but I’ve read Schedule AA1 twice now and can’t see anything comparable to these information rights. So how is P (or P’s representatives) supposed to learn about the basis for the detention, or get hold of the authorisations or statements underpinning it? Is this an accidental omission (and if so, it’s a bit of a clanger) or is this a deliberate decision that it would be too upsetting to talk to the person about this…? Either way, it seems like a fairly straightforward breach of Article 5(2) if information rights aren’t inserted into the legislation.

Representation and advocacy

Since the 1979 case of Winterwerp the European Court of Human Rights has repeatedly held that people who are detained on mental health or disability related grounds will need ‘special procedural safeguards’ to enable them to exercise rights of appeal and review. This could include automatic reviews, as under the Mental Health Act 1983, but there’s no suggestion of that here (and I’m not a fan of this idea in this context anyway), but it could also include making sure there is someone ‘empowered or even required’ to take proceedings on behalf of the person if they aren’t able to.

The way that worked under the DoLS was a demonstrably ineffective mechanism of appointing a relevant person’s representative (RPR) and sometimes also an IMCA. Demonstrably ineffective because people rarely actually managed to exercise rights of appeal.

One of the problems with the DoLS was that if the person was deemed to ‘lack capacity’ to choose who represented them, the detaining authorities could effectively choose on their behalf in their bests interests. This created a risk of weakening the safeguard if the detaining authorities decided not to appoint someone who vocally opposed the detention, and would be more likely to challenge. Which is not to say that most supervisory bodies did that, but there was certainly anxiety that it sometimes happened. Another concern is that ‘best interests’ doesn’t always reflect what the person wants, and it’s not impossible that the RPR would be someone who the person doesn’t actually want representing them.

It wasn’t very clear in the legislation that the RPR was actually supposed to help P to seek a court review if they wanted to appeal, and for a long time RPR’s acted on the basis of what they thought was in P’s best interests. This was challenged in the AJ case, and since then the appointment of RPRs is supposed to consider whether they are willing and able to appeal on P’s behalf if P wants the to. Best interests has no place in the exercise of Article 5(4) rights of appeal.

A backup safeguard was the IMCA. In theory you were supposed to get an IMCA if you didn’t have an RPR, or if you had an unpaid RPR but you and the RPR didn’t understand your rights of appeal and review, you were unlikely to exercise them when it would be reasonable to do so, or you had failed to do so when it would have been reasonable to, under s39D. The s39D IMCA is the only IMCA in the whole of the Mental Capacity Act who actually has a statutory duty to help P (and the RPR) understand and exercise rights of challenge. And our research suggests that increasingly they did this.

If neither the RPR nor the IMCA had helped the person to appeal, then following AJ (and also Neary) the supervisory body was meant to place the dispute before the Court of Protection. The Joint Committee on Human Rights recently recommended that there should be a clear statutory duty to this effect.

So what to make of the government’s version of the LPS scheme? I found these provisions in the government’s Bill the hardest to follow, though that might be a function of a long couple of days and a long train journey!

The Law Commission had proposed someone called the ‘appropriate person’ to replicate some of the functions of RPRs. The way you get an appropriate person was fairly similar to an RPR: if you have capacity, then they are only ‘appropriate’ if you consent to them representing you, but if you lack capacity then the responsible body must be satisfied that it is in the person’s best interests for them to be represented and supported by the person. So we face the same risks that the safeguard is weakened by the detaining authorities being able to avoid appointing someone who might kick up a fuss about the detention, and the same risks that the person might be represented by someone they don’t want involved in that role.

The Law Commission had said in their draft bill that there should be regulations specifying the functions of the appropriate person in terms of ‘challenging, or providing assistance for the purpose of challenging, any decision on matters arising under this Schedule’, involving them in decisions, and ‘enabling the cared-for person to exercise the right to make an application to court and the right to request a review’. Tellingly, the words ‘challenge’ and ‘involve’ don’t appear in this Bill. Perhaps this is something that will fall within the wide ranging power to make regulations, but why omit it?

What of IMCAs? When I first read the Law Commission proposals I’d understood them to be saying that P would get an IMCA whenever they didn’t refuse one, but on a closer re-reading I can now see that they were proposing an IMCA whenever the ‘appropriate person’ (i.e. P’s representative) didn’t refuse one. I don’t think this is ideal for situations where P and P’s representative may not see eye to eye on things, and P may need a different person to represent them. I guess the theory is that the supervisory body would then change the appropriate person, but I’m not sure that’s a reason to mean P can’t request an IMCA in their own right. If the person didn’t have an ‘appropriate person’, then they’d get an IMCA unless the responsible body was satisfied that it was not in the person’s best interests. So the onus was on the responsible body to satisfy itself there were reasons against having an IMCA (rather than for).

Under the government’s Bill, the picture gets murkier still… If the person doesn’t have an ‘appropriate person’, then P will get an IMCA either if they have capacity and request one, or if they lack capacity and either the care home manager or the responsible authority are ‘satisfied that being represented and supported by that person would be in the cared-for person’s best interests.’ So firstly this responsibility for deciding that a person needs an IMCA is shifted to care home managers when the person is in a care home, and secondly they must be satisfied that there were reasons for having an IMCA (rather than against). A subtle shift in language, but one that could have important effects. (Note: It would be very interesting to see the impact assessment for this, and whether it differs from the Law Commission’s…)

If the person does have an ‘appropriate person’, there are some frankly quite bizarre provisions about IMCAs. If the appropriate person (not P, the person representing them) ‘has capacity’ and requests one, then the person gets an IMCA. Note there doesn’t seem to be a mechanism for the person themselves to request one. Then we get into quite strange territory: if the appropriate person (not P) lacks the capacity to request an IMCA, then an IMCA is only appointed if the care home manager or responsible body ‘is satisfied the appropriate person’s being supported by an IMCA would be in the cared-for person’s best interests.’ So firstly, we’re back to a positive requirement to show that it is in the person’s best interests to have an IMCA, but secondly: the legislation envisages a situation where P is represented by someone who ‘lacks capacity’ to ‘consent to being supported by an IMCA’, but where it’s still not in P’s best interests to have the additional support of an advocate. The mind boggles, frankly, at what’s going on there. I can’t wait to see the explanatory notes.

Nothing in the legislation says what kind of IMCA P gets. This is really important. No disrespect to IMCAs themselves, but the MCA’s main provisions for IMCAs are frankly not very rights based. There’s nothing in them about helping P to understand and exercise rights, or challenge on P’s behalf. You need a s39D IMCA for that. But nothing in here points to s39D. For all we know these unspecified IMCAs are just going to write a report about P’s best interests (which have no relevance to the LPS anyway so far as I can see) and leave it at that. Perhaps these mysterious regulations will ride to the rescue, but why, again, hasn’t the Bill addressed the core function of P’s representatives and advocates to help them understand and exercise their rights? It seems very curious, especially when the draft Bill produced by the Law Commission did include directions that regulations should specify how the advocates and ‘appropriate person’ should help P to challenge and appeal. Why omit that?

Appeals

For anyone who was hoping that the appeal against detention would go to a tribunal instead of the Court of Protection, the Bill is a disappointment. The route of appeal looks, on the face of the bill, more or less unchanged. Of course it’s possible that the super-regs will ride to the rescue and make all kind of provision about how the Court of Protection should function, perhaps even adopting the JCHR’s recommendations around establishing clear responsibilities for facilitating P’s participation, but there’s no sign of it here. Elsewhere in Parliament, proposals to cap fees for the Court of Protection are chuntering through, so perhaps that’s the plan to cut the costs. I’m not averse to cutting costs, but I’m more keen to see the problems around accessibility and participation addressed, and there’s nothing here to suggest that is happening.

We also know nothing about the government’s intentions regarding legal aid. At the moment the right to non-means tested legal aid is linked to s21A. But s21A is being abolished, and replaced by s21Za, which serves more or less the same function but isn’t one of the exceptions carved out from means testing in LASPO. So is this an oversight (or poor eyesight on my part), or are we quietly introducing a means test into the right of appeal against detention? (The Explanatory Notes are silent on legal aid; the impact assessments would be useful to see here).

The impact assessment implies the government intends to keep non-means tested legal aid, and presumably the legal aid regulations will be updated to reflect this at some point.  But, and this is a huge but, the impact assessment is also based on the assumption that only 0.5% of LPS applications will ever get to court…  So widening access to justice is not a key part of the proposals  I’ll blog about this in the future.  There’s an assumption that involving an AMCP will resolve ‘disputes’ so they don’t need to go to court, but we know so little about the scale of disputes and have a fairly hazy view of what ‘resolved’ looks like. I’m all for conflict resolution, that should be a major goal of the system, but is it realistic that we’ll reduce situations where the ‘cared for person’ or their family are objecting to 0.5%?

I’m trying to think of something positive to say to end this on. I mean, the LPS scheme is shorter than the DoLS in terms of statutory paragraphs, but there’s a lot of important stuff missing in action and if in the longer term it all has to be added back in via regulations then a) this limits Parliamentary oversight of how precisely the mechanism will work, and b) it’s hardly overall reducing the complexity of the framework.

It will cost less overall. The savings anticipated by the government are £200 million a year or more, but it’s not clear precisely how they arrived at that figure as we don’t have an impact assessment.

It’s more manageable for local authorities, but that seems to come at the cost of shifting a lot of the key safeguards onto the care home managers. Another passing observation is that there doesn’t seem to be any duty to involve an AMCP where there is conflict with the person’s family about where they live. Since this is a major factor that led to the DoLS in the first place, and leads to much litigation, this seems problematic. Surely it would be better to address these conflicts with an AMCP early on wherever possible?

We’ve also lost conditions, which the Law Commission had also proposed we drop. I know lots of lawyers don’t see the point of conditions, and they certainly blur the boundaries around what is and isn’t properly a question of ‘detention’, but you know, that question is still pretty hazy and conditions were put to great use by many BIAs and supervisory bodies to drive through improvements in people’s care.

There’s no statutory definition of deprivation of liberty. I’m not actually a fan of defining ‘deprivation of liberty’ itself, since this is a lawyers question and the question I think we should be answering is: where do we actually need safeguards, and where are they inappropriate? One area I believe they are inappropriate is in circumstances where a person is cared for by their family. I realise that serious problems can arise there and I’m not denying that local authorities have a duty to investigate and take steps to protect people’s rights where there are concerns, I just don’t think Article 5 and deprivation of liberty is a helpful frame on that. There’s nothing in the LPS scheme though to limit their use in family based care, and my prediction is that we could see this causing major legal and media upheaval in the years to come.

My main hope is that this time around Parliament doesn’t waive through legislation concerning the human rights of hundreds of thousands of citizens without proper scrutiny. There are now many people in the Lords and the Commons who have some understanding of the implications of the legislation. I can only hope they hold the government to account on some of these pressing issues.

(Inserted on Friday morning) I’ve thought of something good to say about the Bill. It looks like it strengthens the powers and duties for monitoring the LPS and the rights of those subject to it. Presumably this role would be undertaken by the Care Quality Commission (CQC), who at present have no powers to monitor any settings where people are deprived of their liberty outside of care homes or hospitals. The Bill looks like it would give them powers to ‘visit’ those people and talk to them, and hopefully regulations will beef up existing monitoring and reporting duties (for example, I’d like to see regulations placing upon CQC an explicit duty to actively seek the views and experiences of people subject to the LPS and report on this annually). It doesn’t seem to address the monitoring of ‘responsible bodies’ where these are local authorities, although I think this could be added in the regulations. But it does address some incompatibility with the Optional Protocol on the Convention Against Torture which requires independent monitoring of all places of detention.

From Roger Hargreaves

Roger Hargreaves, a widely respected expert on the DoLS, has kindly given me permission to post the following from the ‘Mental Capacity Act and Liberty Protection Safeguards – Discuss!’ Facebook group:

A warning. You may be assuming that the Mental Capacity (Amendment) Bill is closely based on the Law Commission’s proposals and draft Bill, which, even if you haven’t read them in detail, you will know about through all the consultations and presentations. IT’S NOT. In respect of residents of care homes it’s fundamentally different and runs completely contrary to the underlying principles of the LC scheme. Whether the person has been placed by a public body or is self funding, the care home manager will be responsible for providing all the information necessary for the local authority or CCG to make or renew an authorisation, including capacity and mental health assessments and a statement from someone that they think has “appropriate experience and knowledge” that the arrangements are necessary and appropriate (the equivalent of the best interests assessment); for making the decision whether the person is or isn’t objecting (and therefore whether they should be referred to an AMCP); for consulting with all the interested parties; for conducting reviews; for drafting the authorisation record; for deciding whether the person should have the support of an IMCA; and for choosing the “appropriate person” (equivalent of the RPR). The local authority/CCG will have no veto on their decisions re IMCAs and appropriate persons, and an AMCP will be involved only if the home has reported that the person is objecting (or they aren’t sure). As care home residents will be the majority (perhaps the vast majority) of people affected by the new scheme, this is the core of it and the basis on which it has to be judged.

The provisions in the Bill for the Approved Mental Capacity Professional (AMCP) also differ substantially from those in the LC’s draft Bill. Gone is the requirement for them to be based in the local authority, managed at “arm’s length” to protect their autonomy, and their role is now merged with that of the responsible body’s reviewer (no longer “independent reviewer”). As the “pre-authorisation review” is an internal process, it follows that responsible bodies (including hospitals) will need to employ their own AMCPs, even though the local authority will still approve them. If the person is known to be objecting, the reviewer must be an AMCP, but (although there’s nothing to prevent it) there’s no longer a requirement for an AMCP to review cases where risk to others is a factor, and it would be at the responsible body’s discretion whether other cases (such as those where a relative was in conflict with it) were reviewed by an AMCP. Given that the minimum separation of any reviewer from the case is only that they must not be involved in “the day-to-day care” or “providing treatment” (much less than is required of a BIA, who can’t even work for the local authority if it’s also the service provider) it would be possible for the AMCP to be a close colleague of the person responsible for the case, in the same team and under the same manager. Given this, I think it’s inevitable that the courts will regard the LPS, even more than DoLS, as an administrative rather than a quasi-judicial process, and will continue to insist that all disputes must be referred directly to them; and any comparisons which the government may try to make with AMHPs under the Mental Health Act will be invalid, as the degree of autonomy and protection from undue influence is in no way comparable.