Parliament is currently debating the Mental Capacity (Amendment) Bill (MCAB). The Bill will replace the much-criticised deprivation of liberty safeguards (DoLS), the current framework under the Mental Capacity Act 2005 (MCA) for authorising deprivation of liberty in care homes and hospitals, with the Liberty Protection Safeguards (LPS). It will affect the right to liberty of an estimated 300,000 people in care homes, hospitals, supported accommodation and even domestic settings. It has been heavily criticised by campaigners, professional and governmental bodies, and we hope to see substantial changes to the Bill by the report stage.
A month ago I put in a Freedom of Information Request to the Department of Health and Social Care asking for some further information about the Bill – specifically about whether the Department had undertaken an impact assessment of alternatives to the contentious ‘care home arrangements’, and how many people the Department estimated could become detainable on grounds of ‘risk of harm to others’ who are not currently detainable under the DoLS. Yesterday the Department replied to say that it would need a further 20 days (having already had 20 days) to consider whether it is in the public interest to disclose whether it has even conducted these impact assessments, and if so what they found. By that time the Bill will very likely have completed its critical Report stage in the House of Lords and will become very hard to amend in any significant way. I’ve put more detail about why I asked for this information . Read it, and ask yourself how it can take 40 days to decide whether or not it is in the public interest for this information to be made available.
[UPDATE: the Department for Health and Social Care gave its final response on 27 November 2018. You can read it here. It appears to confirm that there was no impact assessment for the ‘risk of harm to others (“DHSC does not hold this information”), and since work on an updated impact assessment is ongoing this is exempt from disclosure.
The ‘care home arrangements’
The LPS are derived from proposals by the Law Commission, which were widely consulted upon, but the government’s Bill has introduced significant changes to the scheme which were not the subject of further public consultation. One of the most significant of these changes was the ‘care home arrangements’.
Under the LPS, a ‘responsible body’ is responsible for reviewing and authorising any arrangements amounting to a deprivation of liberty. Responsible bodies include local authorities, hospitals, CCGs and Local Health Boards – publicly accountable bodies. The Bill says that in general responsible bodies must arrange the key assessments – including whether a person has or lacks mental capacity, and whether the deprivation of liberty is ‘necessary and proportionate’, as well as consulting about the person’s wishes and feelings. The Law Commission had proposed this on the basis that it could be built into care planning under the Care Act 2014 (for local authorities) or NHS provided care, such that the same assessments which should be built into this care planning could also serve as the basis for the authorisation of any deprivation of liberty by the responsible body. However, the Bill before Parliament has changed this approach: where a person is deprived of their liberty in care homes, it will be the care home manager – not the responsible body – who is responsible for arranging these assessments. The role of the responsible body will be restricted to pre-authorisation review, which will in general be a desktop exercise based on information provided by the care home, unless the responsible body has ‘reason to believe’ that the person is objecting (in which case they must arrange for an ‘Approved Mental Capacity Professional’, AMCP, to meet the person and undertake the review).
There are many problems with the Bill, but from everyone I’ve spoken to and those publishing written statements on the Bill, the care home arrangements have provoked probably the greatest concern. Concerns range from conflicts of interest by care providers, lack of resource and skills for care providers to undertake these assessments, and the care home manager having inadequate information about alternatives to the care home in order to support decisions and assess necessity and proportionality. The care home arrangements were not consulted on, and it is not clear from the impact assessment or the explanatory notes published with the Bill why they were adopted instead of the Law Commission’s original proposals that responsibility for arranging the key assessments should always rest with the responsible body.
Because of the controversy about the care home arrangements, I wondered about the alternatives – in particular the alternative of placing the responsibility back on the responsible body, as the Law Commission had proposed. One of the potential difficulties with this is that the responsible body may not always be able to rely on its own assessments under the Care Act 2014 or similar, and for self-funders in particular it may have to arrange fresh assessments. I have looked through the Law Commission’s 2017 impact assessment and report, and I can’t find reference to this possibility, but it strikes me it could carry a price tag, and it would be useful to know what that is in appraising whether there are alternative policy choices to the care home arrangements.
I put in a request to the Department of Health and Social Care under the Freedom of Information Act 2000 asking whether they had undertaken an impact assessment of this alternative policy choice, and for a copy of it if it existed. The response was due yesterday, and the Department responded in a way that I have never encountered before: it said that ‘the Department’s consideration of the balance of the public interest with regards to your request is not yet complete, and requires further time to complete in line with Section 10(3) of the FOI Act.’ Usually requests for information must be complied with within 20 days, but there is a mechanism which allows public bodies to request further time if it needs to consider whether it is in the public interest to disclose the information.
There are several possibilities in play here. The first is that there is such an impact assessment, but for some reason it was not included in the impact assessment published with the Bill and it will take the Department 40 days to decide whether or not this information should be in the public domain. Another alternative is that the Department has not conducted an impact assessment of whether the responsible body could take on the role envisaged by the Law Commission, but it is taking 40 days to decide whether or not it is in the public interest to disclose this. Usually when a request for information is refused, the public body would inform you whether it even held the information, but unusually in this case the department has neither confirmed nor denied that it is holding the information. Presumably this is because it takes the view that even confirming or denying whether it has conducted such impact assessments is itself sensitive information.
The risk to others issue
In addition for asking about care home arrangements, I also asked the Department for its estimates of how many people might become detainable under the LPS who are not currently detainable under the DoLS on grounds of ‘risk of harm to others’. The Law Commission had proposed that ‘risk of harm to others’ should be an additional possible reason for detention under their ‘necessary and proportionate’ test, and this was explicitly written into their draft Bill. However, the government omitted the relevant text from their Bill, meaning this was not flagged up by peers for debate, and it has only recently been confirmed in passing that the Department intends that this will be a basis for detention – only not one clearly inscribed in statute and properly debated in Parliament, but set out in the Code of Practice.
Because ‘best interests’ is not a criterion for detention under the LPS, this raises the possibility that the Bill will permit detentions in circumstances that would not currently be lawful under the MCA because it is not in the best interests of the person (like this case). When ‘best interests’ is not part of the basis for the detention, this in turn limits the ability of attorneys and deputies to block the detention under s6(6) MCA (something the Minister has relied on heavily to justify removing the Law Commission’s proposed clause which would have made clear that responsible bodies cannot authorise detention where the attorney or deputy objects). This could potentially even apply to people whose general care is arranged on the basis of best interests, where an alternative argument could be made that the restrictions are necessary on grounds of risk to others. Notably in cases like Steven Neary’s the council made this argument but it was not considered in the judgment because at present the MCA and the DoLS do not permit detention based on risk of harm to others. It also creates the strange situation that responsible bodies would be able to authorise deprivation of liberty in circumstances where the Court of Protection itself cannot. The Court of Protection would still have to review these cases when they are appealed, and Court of Protection judges have expressed concern about their role in reviewing detention which is essentially on public protection grounds, not within the traditional remit of the MCA.
It seems to me that these issues urgently need to be fully and transparently debated in Parliament. I was genuinely shocked that at the most recent debate on the Bill the Minister said ‘I am told that harm to others can be considered under the current DoLS system, so what is proposed is not a change from the current system.’ If that is what he has been told, then he has not been properly briefed on this fundamental issue – which was explicitly discussed in the Law Commission’s 2015 and 2017 reports.
One of the key questions is how many people this could affect. The Law Commission appeared to believe this would affect a small number of people, based on their consultation about those currently at the fringes of the DoLS. One of the possibilities the Law Commission did not discuss is that if you create a new power to detain on grounds of risk to others, which is contained within a vehicle that is light on ‘formalities’ or safeguards, it may become an attractive alternative to mechanisms like Supervised Community Treatment or for the management of populations who are not currently considered in relation to DoLS. I think this requires extremely careful consideration. So I also asked the government for its estimates of how many people could be affected by this. Importantly this was not part of the Law Commission’s consultation, because they consulted on deprived of their liberty on grounds of ‘risk of harm to others’ within the broader envelope of ‘best interests’. The Bill has cut the tether to best interests, and we don’t know where it will land.