Train number 3

Anyone else spend yesterday afternoon refreshing their browser to see what compromises and agreements had been reached after a summer of tense and sometimes heated negotiations? Me too. And here they are – the government’s proposed amendments to the Mental Capacity (Amendment) Bill. 😉

(NB: a very succinct list of the amendments, produced by Tim Spencer-Lane, can be found at Alex Ruck Keene’s blog here)

Super quick post because I’m on a train number 3 on my way to work this morning (my current 3 hour commute -thanks Great Western!).  I’ve had a read through the amendments on trains number 1 and 2 this morning, and this is what I think they say:

[Quick update several trains later – I’ve had a look and I can’t see anything in the amendments that give parents of 16 and 17 year olds powers to basically block arrangements under the LPS being authorised.  In other words, it seems to me – and I’d be happy if someone can point to something in this Bill that indicates otherwise – that the Bill could be used to remove a person from the care of their family against their parents’ wishes. I may have missed this, but one way to prevent this would be to reinstate something equivalent to the dropped clause 15 that was in the Law Commission’s Bill, preventing responsible bodies from authorising arrangements where the attorney or deputy objected, and adding into that clause the parents of 16 or 17 year olds]

(I think but I’d have to double check that this means that the provisions to insert greater independence into the assessments for those in care homes would only kick in if the responsible body decided to do it this way)

This is actually more or less what the Law Commission proposed, and potentially will bring many more people within the IMCA provisions.

[Updated – I jumped the gun here on IMCA advocacy; it’s only an opt-out scheme in limited cases not for everyone]

At first sight I thought this amendment meant that everyone would get an IMCA unless the responsible body believed it was not in their best interests to have one, but I think I’ve been to hasty. The Law Commission’s was an opt-out scheme for IMCA referrals both for a person without any appropriate person to represent them (on a consent basis), and for anyone with an appropriate person to represent them (unless the appropriate person refused the IMCA).  This is what the Bill currently says:

Law Com IMCA proposals 2

So far as I can make out, this new amendment now imports an ‘opt-out’ scheme for a person without any ‘appropriate person’ to represent them on the best interests basis suggested by the Law Commission (still creating the possibility of a scenario when a person has neither an appropriate person or an IMCA, because this is not viewed as being in their best interests). But I think the following clauses in the original Bill still stands, meaning if the person has an ‘appropriate person’ the provision of an IMCA is still on an opt-in basis, contingent on whether the appropriate person requests an IMCA or ‘the appropriate person lacks capacity to consent to being supported by an IMCA‘ (!) and the responsible body believes it is in the person’s best interests to be supported by an IMCA as well.

Law Com IMCA proposals 2

To be honest both schemes create the possibility that a person could want an IMCA, or need an IMCA to help them to appeal, but the appropriate person effectively blocks their access to that support whilst not themselves assisting with an appeal.  The risk is heightened in an opt-in scheme, as under this Bill, because the appropriate person has to take the initiative to request an IMCA, rather than simply refuse one.

So for the majority of people under the LPS, who will have an appropriate person (still appointed on a ‘best interests’ basis), IMCA referrals will still be on an opt-in basis, controlled effectively by the appropriate person themselves in most cases. I can’t see anything (please do let me know if I’ve missed it) that gives the responsible body the duty to appoint an IMCA for the person themselves if their appropriate person is not properly fulfilling the function of supporting or enabling an appeal. Arguably under such circumstances the RB should decide, following AJ, that the appropriate person is not ‘suitable’ and replace them or simply remove them and give the person an IMCA, but we are into a seriously tortuous pathway to helping the person to understand and exercise rights of appeal there.

I still do not like having ‘best interests’ anywhere near provisions that are supposed to secure a person’s rights of challenge and appeal.  Why is ‘best interests’ such a problem? Because in human rights terms the primary function of an IMCA within a detention framework like this is to serve as a ‘special procedural safeguard’ to help the person understand and exercise rights of appeal.  Rights of appeal are unqualified and recent European Court of Human Rights rulings have stressed time and time again that a person’s right to appeal should not be reliant on the goodwill or discretion of others, or demonstrating any particular prospects of success.  The problem with ‘best interests’ is it inserts a layer of discretionary decision making in front of a person’s primary means of challenging the arrangements if they are unhappy.  It is entirely possible to imagine a situation where a person is unhappy and asking to leave, or their body language indicates they are unhappy, and those responsible for determining whether or not it is in their ‘best interests’ to have an IMCA could take the view that it is not in their best interests to be supported to challenge the detention – perhaps because they think if nobody ‘encourages’ them they’ll settle in, or because they think they have poor prospects of success in such an appeal.  The European case law makes it abundantly clear this is a line of reasoning that directly collides with rights of appeal; as the court put it in AJ v A Local Authority [2015] EWCOP 5:

There is no place in Article 5(4) for a best interests decision about the exercise of that right since that would potentially prevent the involvement of the court. The decision to exercise a right to bring proceedings cannot be a best interests decision. As Baroness Hale of Richmond observed in Cheshire West (at paragraph 36), “the whole point about human rights  is their universal character”.

I am slightly less concerned about this now that it will be the responsible body not the care home making this determination, since (in theory at least) they will have some awareness of rights to appeal and rulings like AJ, and will (unlike private care homes for self-funders) be public bodies bound by the Human Rights Act 1998.  Nevertheless, I think the use of ‘best interests’ here does still carry risks of undermining a person’s rights of appeal. I’m given to understand that there is a concern that some people may have an advocate ‘imposed’ on them when they do not want one. You could address this by clearly framing the opt-out provisions in terms of a clear wish not to be represented by an advocate (best interests, as we all know, is not necessarily synonymous with what the person wants). And to be honest, if I had to balance the risks between someone having to tell an IMCA to buzz off, and someone else being unable to challenge arrangements that make them unhappy with the result they lost what might be their last chance to return home, then I know which risk I could live with more easily.  So whilst this amendment is less bad than previously, I am still concerned that it fundamentally misunderstands the nature of special procedural safeguards ‘to ensure that a person deprived of liberty is
not only entitled but enabled to have the lawfulness of his detention reviewed
speedily by a court’, as the court put it in Neary (emphasis mine).

Overall assessment?

I still believe (as does the Joint Committee on Human Rights) that the statutory duty to involve an Approved Mental Capacity Professional to consult with the person and undertake a review of the relevant assessments needs to be more broadly framed than whether or not the person is perceived as expressing a wish to reside, or be treated, elsewhere.  This is partly because whether or not a person is viewed as ‘objecting’ or expressing a wish to live elsewhere is so subjective (consider, for example, that some Supreme Court judges described MEG as ‘living happily’ in a facility where she was prescribed Risperidone for ‘agitation’, was restrained for sometimes attacking other residents, and ‘yearned’ to be with her foster mother).  A person’s family or friends may interpret behaviour as objecting, but would not be able to trigger an AMCP referral unless they could convince the responsible body of this. But it is also because the potential for serious human rights concerns to arise is far broader under the LPS, for example:

  • A person may be heavily sedated or medicated and be unable to express objections (what the Court of Appeal referred to in MIG and MEG’s case as a deprivation of the liberty to express yourself);
  • A person’s contact with others may be restricted;
  • A person may be frequently restrained, secluded, covertly medicated, or subject to other very invasive restrictions;
  • A person who is detained in hospital for treatment (including independent hospitals) for mental disorder under the LPS will by definition not be regarded as objecting (otherwise the MHA would have to be used), yet there is a clear policy imperative to ensure independent scrutiny of these arrangements, especially given ongoing concerns about the failure of Transforming Care.

The Law Commission’s regulations had strongly implied that IMCAs and appropriate persons would have statutory duties to support and enable appeals, as they do under the DoLS, but there are no equivalent regulations here.  I would also want to strengthen this by creating clear lines of responsibility for whoever undertakes the pre-authorisation review to consider whether an application to the Court of Protection is necessary and for the responsible body to follow this recommendation.  There are too many cases (including those we learn about in court) where the best interests assessor has been saying ‘this needs to go to court’ and the responsible body has not taken this step. One reason they are able to fudge this, arguably, is they can point to the person’s representatives and advocates and say the responsibility rests there.  The responsibility for responsible bodies themselves needs to be clearly spelled out.

There are still not rights to be informed comparable to those under the Mental Health Act and the DoLS.  It is not enough to say that a person can ‘request’ this information using data protection laws, Article 5(2) carries a proactive duty to inform the person.  Can this be dealt with in the Code? I take the view that the Bill should be human rights compliant on its face, and additionally I believe that data protection laws themselves may well present difficulties for families who do not have power of attorney or deputyship, and who wish to see the authorisations and assessments, because these are clearly sensitive personal data and there is no existing provision under data protection laws for sharing these without formal powers such as deputyship or LPA.

The necessary and proportionate test is still unspecified, although we now know the government intends to flesh this out in the Code and to include ‘risk of harm to others’. There is still no published impact assessment setting out how many people this might encompass, and there is still a lack of clarity as to whether for some people who are detained under this ‘risk of harm to others’ provision they would be able to challenge this on grounds that it’s not in their best interests. I predict litigation on this question, and doubtless that litigation will be looking for a clear Ministerial statement that it is not the government’s intention that any person could be detained under this scheme when it’s about public protection and not the best interests of the person.

Still, obviously, no amendments to best interests itself to place a stronger emphasis on the wishes and feelings of the person, or to create a scheme where a person can nominate their own supporter (as people now can in Ireland, Peru, Costa Rica, Texas, Israel and some Canadian and Australian jurisdictions).  Remember the sunny uplands of last year when we thought we’d be moving closer to CRPD compliance instead of fighting for basic compliance with article 5 ECHR…?

One last thought:

It’ll be interesting to see how ADASS and others respond to this, and hopefully a fresh impact assessment will give some indication of the resource implications of this proposal.  As far as I know an Equality Impact Assessment is still being prepared but hasn’t been published. So watch this space.

Here comes train number 4.

3 thoughts on “Train number 3

  1. Still missing a trick here on the care home amendment. Is the RP the client, as at present? If so, under what circumstances will the relevant person have the capacity to determine the knowledge and experience of the assessor, who assesses that capacity, and who will stand proxy if they lack that capacity?

  2. Pingback: Guest post from Lorraine Curry: The MCA Amendment Bill and my new shoes | The Small Places

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