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.