Some thoughts from the Lakes

If I’d known that this Wednesday Parliament would be debating amendments to the Mental Capacity Act, in a Bill that would affect the right to liberty of an estimated 300,000 people, I wouldn’t have booked a holiday for this week… so I’m sneakily writing this blog post on my phone with one hand whilst trying to get an overexcited toddler to go to sleep. Don’t tell on me!

This Bill is a really big deal. It will affect huge numbers of people with dementia, learning disabilities, brain injuries and other conditions. It will affect their families, including in some cases by applying the concept of deprivation of liberty to care provided within the family home. It will potentially ease burdens on local authorities but at the cost of substantially weakening safeguards and increasing burdens on an already struggling care sector.

Some absolutely key questions about the Bill are unclear. The current framework, the deprivation of liberty safeguards, requires an independent assessment of best interests. Their proposed replacement, the Liberty Protection Safeguards, have replaced this with a test of “necessary and proportionate”. But necessary for what, and proportionate to what? The is based on proposals by the Law Commission, although it substantially changes their proposed scheme without further public consultation. The Commission envisioned expanding the scope of the Mental Capacity Act’s regime for authorising detention beyond best interests and risk to the individual, to include risk to others. The government’s Bill is silent on whether this is intended here. The Minister argues that “necessary and proportionate” is a second stage test, after best interests, but has not ruled out risk to others. If risk to others is included this also raises the question of whether attorneys and deputies appointed to make decisions for the person will be unable to refuse consent to the arrangements where this is the basis for the authorisation. The Minister says they will “generally” retain this power but does not address this potential loophole. Oddly this would give powers to the local authority or health body authorising detention that even the Court of Protection doesn’t have. Whether or not you support this proposal the lack of clarity on this is unacceptable. Parliament is being asked to sign a blank cheque.

Another key concern is access to justice. The ability to appeal against a deprivation of liberty authorisation in court is a fundamental safeguard. Access to justice is a serious problem under the current system; the appeal rate is below 1% and cases like Steven Neary’s and others show how hard it is for families and detained people to challenge public bodies where they object to the arrangements. The new scheme is estimated by the government to reduce the appeal rate even further to 0.5%. Some people will gain access to legal aid who are currently excluded because they are not in care homes or hospitals. But under this proposed scheme people will only have help to bring a challenge from a representative or an advocate if those responsible for the deprivation of liberty think that it’s in their best interests to be given that help. The fox is guarding the chicken coop.

I could go on but I won’t as my batteries (real and metaphorical) are running low. Concerns about the Bill are widely shared. A survey of 900 people, the majority practitioners who already work under the current system, found widespread concerns about the proposals. A recent report by the 39 Essex Chambers, widely respected experts on mental capacity law, shows concerns expressed by many experts. Third sector bodies are also concerned but I’m reaching the limit of blogging with one thumb… (updated, here’s a link to the Law Society’s response*)

I am disappointed but not altogether surprised that no national news outlet except the ever excellent Community Care and the legal media have covered this Bill. A review of the Mental Health Act, with no legislation before parliament, gets more coverage (and of course, both should get coverage). But the right to liberty of adults “lacking capacity” strikes many as an oxymoron, or else not proper news and something to be relegated to specialist news outlets. 300,000 people. It’s doubtful we’d view legislation affecting the liberty rights of any other group with such disdain. But then that’s how we ended up with the current shambles in the first place.

*I sit on their Mental Health and Disability Committee.

10 thoughts on “Some thoughts from the Lakes

  1. Such a worrying time. Since the amendment was announced I have asked several care hone mangers for their views and not one had a clue what I was taking about. I’m a BIA and am aware how stretched the home managers can be already without this additional ‘huge’ responsibility which they seem oblivious to. Very worrying indeed.

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  3. Anne-Marie’s comment illustrates perfectly why the amendment has had no publicity in that very few people beyond those directly involved in working with legislation (BIA’s, IMCA’s etc) have ever understood it. Who will be responsible for ensuring those with new roles in decision making receive any training? in comparison to the proposed changes the current system is beginning to look like a flawless beacon of sound legislation

    • What implications would this have to those who are deprived of their liberty. No doubt a one way ticket to possibly never coming out alive .
      Who is ping to benefit from its ? It’s non sensical.
      I am genuinely lost and confusued

  4. Thanks for another excellent piece on this very worrying Bill, notwithstanding your other priorities at present!
    How the government managed to commission a fairly comprehensive consultation process leading to the Law Commission’s proposals, and then brought out a Bill which deviates so significantly from the their thinking, is concerning indeed.

    The comment in the impact assessment to the Bill which suggested that the reason for transferring to the care home managers the responsibility for preparing the documentation was because this was already something that they are doing shows a calamitous lack of understanding of the situation on the ground…
    “In our proposed model care providers will be responsible for organising and conducting the assessments necessary for the LPS authorisation when they are responsible for the care. In the Law Commission’s proposed model this would have been done by local authorities, which would have meant there was still duplication of assessments completed by private care providers as part of their care planning process.”
    Who wrote this stuff?

    It is considered by the government that these reports will be of zero cost to the care providers. Presumably because they are doing them already.

    I have also mentioned the Bill to care home managers when I have been visiting, and none were aware of it, let alone the implications for them.
    The severe dilution of the ‘cared for person’s’ Article 5(4) rights to appeal is another change which is difficult to understand, other than simply to save money at the expense of people’s rights.
    We now have to rely on the Lords to work through the scrutiny process and somehow make a silk purse out of this pig’s ear.

  5. Anyone who’s ever looked at a selection of care home care plans or had discussions with Care Home Managers about capacity, best interests or DoLS will know that that many are massively under-informed, unprepared and way too busy for this role.
    Quite apart from the glaring conflicts of interest etc, it will be universally unpopular. I could see this being a last straw that pushes some care home managers/owners into giving up the ghost and closing down.

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  7. Without amendment of the Bill (or at least very strong direction in the new CoP) there is very real risk that “necessary” becomes necessary for the convenience of the care home or family members and “proportionate” becomes proportionate to the budget constraints of local authorities or the time available of overstretched AMCPs and IMCAs etc. The protection of vulnerable persons seems to be a long way behind the Government’s priority for “burden reduction”. With MPs distracted by Brexit, events in Salisbury and the party conference season etc, there is a serious danger that bad legislation is introduced by default. Victoria Butler-Cole makes a good case recently on the 39 Essex Chambers site (Sept Special Report) that carelessly introduced law may need to be retrospectively unpicked by the courts. With so much good work done by the Law Commission and the Lords/Commons Joint Committee on Human Rights; it is disappointing that their diligent efforts are so casually and complacently disregarded.

  8. This slots nicely into place with the other part of the pre-planned master strategy which includes the construction of big containment blocks to “legally” process potential social care autistic liabilities into for the benefit of the business driven profit before people low tax profiteers.
    “We need a successful brexit business driven low tax economy in order to to pay for social care” Boris Johnson”
    Ironically a vote for the euphemistic free enterprise is a vote for imprisonment, court Injunctions and gagging orders.
    That’s what the voters voted for.

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