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Safeguards: the missing link in the Mental Capacity (Amendment) Bill?

Like many academics interested in capacity law, I have spent the last day or so working out what the newly published Government amendments for the Report stage would do to the proposed new approach to the Deprivation of Liberty Safeguards (DOLS) regime in the Mental Capacity (Amendment) Bill. The process of law reform can, I think, make it easy to lose sight of the ‘bigger picture’ questions at the heart of why the law needs to change. In this blog, I want to reflect on why reform is needed, which parts of the DOLS require reform, and assess whether the amendments to the new framework will ensure that these safeguards work to protect people with intellectual and psychosocial disabilities from unnecessary, disproportionate and unlawful deprivation of their liberty.

Safeguards

The first thing we need to consider is who these safeguards are for. DOLS are safeguards for the person who is having their liberty restricted, “P”.[1] Second, we need to make sure that we are clear about what we are safeguarding P against. The purpose of the safeguards is to ensure that P’s rights under Article 5 of the European Convention on Human Rights (as incorporated into UK law by the Human Rights Act 1998) are protected. These are legal, procedural safeguards. The content of them is shaped by the interpretation of the Convention rights by the European Court of Human Rights (ECtHR), who provide a minimum level of human rights protection, and our domestic courts, most importantly our Supreme Court, who can (and sometimes do) go further than the European Court in protecting those rights.

What rights does P have under Article 5 according to the ECtHR?

  • Under Article 5(1)(e) deprivation of liberty must be “in accordance with a procedure prescribed by law”
  • ECtHR case law has made clear that a Deprivation of Liberty cannot occur unless:
    • P is reliably shown by objective medical evidence to have a mental disorder;
    • P’s mental disorder must be of a kind that warrants compulsory confinement; and
    • The deprivation of liberty must be shown to be necessary in the circumstances.
  • Under Article 5(4) P has the right to have the lawfulness of their detention decided speedily by a court.
  • ECtHR case law has made clear that for persons detained under Article 5(1)(e):
    • Automatic review must happen at ‘reasonable intervals’: intervals of less than 1 year have been accepted by the court; longer intervals have not.
    • P should not run the risk of remaining in detention long after the time when deprivation of liberty has become unjustified.
    • Reviews must include contemporaneous medical assessment, and not simply rely on the original assessment.
    • Periodic reviews that are solely initiated by the authorities are not sufficient on their own, P is also entitled to initiate proceedings at reasonable intervals.

The original DOLS, enacted after the ECtHR decision in HL v United Kingdom comply with the procedural safeguards required by the Convention.

ECtHR case law has, to date, only applied in institutional contexts (hospitals, secure care environments). The Cheshire West case took English law somewhat further than this, and (in my view, rightly) brought many more care placements and arrangements into the scope of these procedural safeguards against the arbitrary deprivation of liberty. The problem is that this vastly increased the number of people whose care placements and arrangements meant that they needed access to the procedural safeguards in the DOLS. The consequence: many more applications were required and costs skyrocketed at a time of budget cuts and political fiscal restraint. This led to delay, backlog, and ongoing violations of individuals’ procedural rights under Article 5.

The DOLS system itself (complicated, legalistic and procedurally focused as it is) has, as a consequence, been exposed as unfit for the purpose of safeguarding the rights of this much larger number of people. The current Mental Capacity (Amendment) Bill was introduced to respond to these consequences. The hope is that it can provide adequate safeguards for P whilst reducing the cost and bureaucracy for care providers, local authorities and hospitals.

The current state of the Mental Capacity (Amendment) Bill

The Committee stage of the Bill has now been completed and the next debate will be the House of Lords Report stage on 22 November. Progress of the Bill can be tracked on the Parliament website. The big question is this: will the Mental Capacity (Amendment) Bill, including the proposed government amendments provide the required procedural safeguards to P whilst also meeting the other aims of reform (simplification, cost reduction)?

What the Government amendments would do

Alex Ruck Keene has helpfully blogged a digest of the Government amendments from Tim Spencer Lane. As I reported in my last blog on the Bill, the Government have agreed to include 16 and 17 year olds in the Bill. Several of the amendments speak to this issue (which I won’t go into here). They have proposed changing the wording of ‘unsound mind’ (taken from Article 5(1)(e) of the Convention) to the term ‘mental disorder’, which is more in line with the ECtHR jurisprudence, and mirrors the definition in the Mental Health Acts. I also won’t go into this issue in more detail, except insofar as to hope that a justification for using this language (rather than the looser language of the MCA) will be provided by the Minister at Report stage.

As I expected, the Government amendments to include a duty to consult P are not quite as wide ranging as the Law Commission had proposed in the report that this Bill is based on. The Law Commission recommended changing s. 4 of the MCA to give priority to P’s views in all best interests determinations under the MCA (including DOLS). The proposed government amendments require that 1) “regard must be had” to P’s wishes and feelings “(amongst other matters)” in relation to the determination that the deprivation of liberty is necessary and proportionate; and 2) that P must be consulted under paragraph 17. These are positive changes, and bring the DOLS regime closer to compliance with Article 12 of the UN Convention on the Rights of Persons with Disabilities. These amendments do not, however, speak to the safeguards required by Article 5 ECHR.

There are also amendments to parts of the bill which introduce new responsibilities for care home managers. It will now be up to the responsibility body to decide whether or not a care home manager will be responsible for arranging the assessments and paperwork.  There has also been clarification that it is the responsible body (local authority, CCG or hospital manager) who will commission the pre-authorisation review which I blogged about in October. New provisions have been proposed to make clear that assessments cannot be carried out by persons with a ‘prescribed connection’ to the care provider, which can include a financial connection. These amendments go some way to addressing the concerns I set out in July about potential financial conflicts of interest. These new provisions, the detail for which will come through regulations, add in new safeguards against conflicts of interests where a care home manager is responsible for paperwork. They do not, however, directly speak to the safeguards against deprivation of liberty under Article 5.

What about the safeguards against deprivation of liberty?

On balance, I think that the safeguards required by Article 5(1)(e) about medical assessment, the existence of mental disorder and necessity are largely addressed by the new scheme, provided it is read alongside the relevant domestic and international case law. The changes the government propose will allow delegation of some of the paperwork to care home managers where this is appropriate, but the proposed amendments ensure legal responsibility rests firmly with the relevant body. I am less convinced that the new scheme provides sufficient safeguards in relation to Article 5(4) rights to review of a deprivation of liberty. Important provisions here relate to access to independent advocates (IMCAs), the framework for renewal and review of the deprivation of liberty, and access to information.

Access to independent mental capacity advocacy is somewhat enhanced by the proposed amendment that those who lack capacity to consent to be represented by an IMCA should have one appointed to represent them unless it is not in their best interests. Access to IMCAs is still not, however, always available where there is an “appropriate person,” which is a dilution of the Law Commission proposals. Appropriate persons are likely to be family members, and are subject to the consent of P, unless P lacks the capacity to consent to that person representing and supporting them. There are many aspects of this that make sense – where P has supportive and knowledgeable informal networks, it is important to make use of these.[2] We do, however, need to be attentive to potential problems either where relationships are not as consensual as they may appear (for example where P is unduly influenced by their ‘appropriate person’), or where the ‘appropriate person’ doesn’t have sufficient knowledge and understanding of mental capacity law to fully protect P from unlawful deprivations of their liberty. Access to an IMCA, on an opt out basis, is an important safeguard for P.

No substantive amendments have been proposed to the renewal or review provisions in the Bill. The authorisation can be renewed initially for up to 12 months, then for up to 3 years at any subsequent renewal. Regular review is to be a required feature of the new framework, as a result of a specified programme of regular reviews, and where a review is sparked by any of: a variation in the authorisation; a request from “a person with an interest in the arrangements”; if P becomes subject to mental health arrangements or requirements; or if the reviewer “becomes aware” P doesn’t want to live in or be cared for in the placement. But without any statutory limits being placed on the timescale for reviews, I am concerned that these might not operate well enough to protect P’s rights under Article 5.

No significant changes have been made to when and whether an Approved Mental Capacity Professional must be involved or carry out the required assessments. The bill remains silent on when and whether new assessments are required as part of the review or renewal process. It is also still silent on rights to information for P, or for P’s “appropriate person,” about how to challenge or appeal a deprivation of liberty ­­authorisation. These issues in combination still raise concerns for me about the extent to which the Bill introduces sufficient safeguards to be compliant with the UK’s obligations under Article 5, and especially under Article 5(4).

Overall, it seems to me that the tireless effort of the Lords during committee stage has helped to move the Government away from some of the completely indefensible failures of this Bill. The new restrictions designed to protect against conflicts of interest where care home managers are given a larger role in the DOLS process are particularly important. But because the Bill was so bad to begin with, and so many amendments were required, there was little time during the committee stage to reflect in detail on the procedural safeguards around review and renewal that should have been at the heart of the Bill.

I very much hope that there will be more substantive discussion of these important questions around access to information and advocacy, and the need for more substantial review, especially where authorisations are renewed for 3 years at a time, during the next stages of the parliamentary process. Fundamentally, if we get the procedural safeguards in the Bill wrong, and do not include sufficient protection for P against unnecessary and lengthy deprivations of liberty, there is a danger that this new scheme will also be unfit for purpose, taking us right back to square one. There have been a number of amendments proposed by others in the Lords that speak to these issues, so here’s hoping that the Government will be in a listening mood on 22 November. I hope there is also time in the parliamentary process for some of the other missed opportunities to reform capacity law to be included in this Bill.

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[1] In this blog I’m going to refer to that person as P, reflecting the language of the Mental Capacity Act 2005. The Mental Capacity (Amendment) Bill takes a different approach, calling them “the cared-for person”. I don’t like this shift for two reasons: 1) if/when the bill amends the MCA, there will be two terms for the same person in one statute. This will be confusing. 2) for the purposes of DOLS, the salient issue is not “care” it is “liberty restriction”, so the more accurate descriptor would be “the person whose liberty is to be restricted”

[2] My (2017) book, Duties to Care explores the experiences of informal carers of people with dementia, who often find it difficult to navigate the complex regulatory systems that surround health and social care.

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