The Mental Capacity (Amendment) Bill must change

The Deprivations of Liberty Safeguards (DoLS) are designed to protect the most vulnerable people in our country, but they are failing to do so. Jonathan Senker, our chief executive, argues that the Mental Capacity (Amendment) Bill will not solve these problems, but will make them worse, unless major changes are made to the Bill.

The DoLS were intended to safeguard the rights and interests of people who lack the formal capacity to take what are often life-defining decisions, such as whether to live in a care home or return to their own home. DoLS were meant to provide a robust legal framework for managing such decisions, and needed to foster sensitive implementation and sound judgement.

However, the legislation has failed on all these counts. In 2014, the Lords Select Committee on the Mental Capacity Act concluded that DoLS are ‘not fit for purpose’. What’s more, the Supreme Court’s judgement, known as Cheshire West, dramatically widened the interpretation of the scope of the DoLS. The overall effect is that 125,630 people are now waiting for an assessment and thus unlawfully detained.

Following three years of extensive consultation, in 2017 the Law Commission published a credible set of solutions to the issues with DoLS. But rather than building upon these, the current Mental Capacity (Amendment) Bill has dispensed with the more progressive aspects of the Commission’s proposals.

For people who live in residential care, what the Bill proposes is a system that places the onus on Care Home Managers to organise and/or carry out assessments for the person’s detention and access to advocacy.

The Bill would negate people’s rights and would ensure that their voices remain unheard. Here’s what I feel must change, and why:

Protect the voice and rights of the individual

The Law Commission proposed that the wishes of the individual were given particular weight in determining the person’s best interests. This is especially important as a bulwark against a ‘professional knows best’ culture that still permeates health and social care. The Bill fails to provide such weight to the individual’s wishes.

Everyone has the fundamental legal right to challenge their detention (Article 5 of the Human Rights Act) and it has been found that unconstrained access to independent advocacy is essential to realise this entitlement. Making such support and representation dependent upon the subjective opinion of the Care Home Manager flies in the face of this human right.

Change the role of the Care Home Manager in the proposed scheme

There are a great number of highly skilled, deeply committed and very hard-working Care Home Managers. However, as many of them have themselves stated, they are simply the wrong people to be at the centre of decision-making about Deprivations of Liberty. This is because:

It creates an obvious conflict of interests for the person responsible for managing a service to play a critical role in determining whether an individual requires detaining in that service.
It is necessary to consider as a part of the assessment and decision-taking process what alternatives exist to the person being detained in a Care Home. Care Home Managers are wrongly placed to consider other arrangements which might be the person living in their own home with a package of support, or for them to be enabled to live in Supported Living.
Care Home Managers will not usually have the specific competencies and training required to take sometimes difficult legal and wellbeing decisions against the back-drop of a necessarily moving legal context as case law develops.

The additional duties placed upon the care provider sector may in many cases tip already fragile organisations below viability.

Ensure sufficient independent oversight

The Bill provides for direct input from an Approved Mental Capacity Professional (AMCP) only when the person objects to their own Deprivation – as communicated by the Care Home Manager.

Setting aside the obvious risks of Care Home Managers simply missing the signs that a person might be objecting, this test sets far too a high a hurdle in the path to independent scrutiny. It is important to remember that these provisions will apply largely to people with advanced dementia and severe or profound learning disabilities.

I have met many people who are subject to the DoLS. Under the proposed Bill, the majority of them would probably not get oversight from an AMCP where it was needed. At one end of the spectrum, I think of the retired academic who complained stridently and repeatedly to me that she was ‘a prisoner’ in a care home; but the Care Home Manager appeared to be unaware of her views. Only last week I met a charming elderly lady who was extremely grateful for the patient care provided at her care home. She only confided in her advocate after a half hour of sensitive and open discussion that she really didn’t want to stay there. Both women were articulate, despite their confusion. Many people are not. A large number of people lack any formal or verbal communication method. The behavioural indications of their objection may frequently be missed.   

At a minimum, it is essential that a wider range of triggers lead to independent review, including the opinion of others involved in the life of the individual, together with a defined set of circumstances which require automatic review by an AMCP. This ought to include, for example, when the person is detained as an inpatient in mental health services under DoLS (rather than the Mental Health Act – until and unless a co-ordinated view is taken on both pieces of legislation).

In summary

We are calling upon the Government to:

  • Ensure that people who may be subject to detention are consulted and provided with information about their proposed or actual detention, and that particular weight is placed upon their wishes in decision-making.
  • Recognise people’s fundamental legal rights (under Article 5 of the Human Rights Act) to access advocacy about their proposed or actual detention.
  • Reconsider the role of the Care Home Manager, relocating many of their proposed duties back to the local authority in accordance with the Law Commission’s recommendations, and integrating to a large extent assessment of Deprivation of Liberty into Local Authority care planning.
  • Provide improved scrutiny by expanding the circumstances under which Approved Mental Capacity Professionals are involved.

Without these changes, the prospects for hundreds of thousands of people currently subject to DoLS or waiting upon an assessment are poor.

Two credible options

Two credible options exist. One is rapid and far-reaching changes to the Bill. The other would be to pause and develop a revised Bill, more closely modelled on the Law Commission proposals, in consultation with those representing people affected by it and the organisations who would need to implement it. This second option would also allow the changes to be made in the knowledge of the proposals due to be made later this year by the Independent Review of the Mental Health Act.

Both options carry risks. Given that the Bill needs fundamental change rather than modification, there is a risk of proceeding in haste and regretting the resulting errors at leisure. Equally, choosing to pause does risk maintaining the current unsatisfactory situation with no guarantee of future Parliamentary time. There can, however, be no justification to push ahead to pass legislation which is even worse than the status quo, just because there is the opportunity to do so.

I urge the Government to consider these options carefully. We at VoiceAbility remain committed to continuing to engage and support them to develop the legislation that this country needs, and which is most sorely needed by its most potentially marginalised and powerless citizens and their families.

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