Mental Capacity (Amendment) Bill and DoLS: Welcome but flawed concession

A useful byproduct of the Brexit madness in the UK Houses of Parliament seems to have been a small outbreak of moderately good sense in a matter far removed from the political hurly burly. To avoid a defeat in a fractious House of Commons, the Government has taken on board serious worries and U-turned over a proposal in the Mental Capacity (Amendment) Bill that is intended to deal with the debacle over the law on deprivation of liberty safeguards (DoLS) for those in care lacking mental capacity.

Those new to this subject may wish to start here: Deprivation of Liberty Safeguards Chaos. But, in brief, the judgment in P v Cheshire West ([2014] UKSC 19), left care providers having to take to court huge numbers of cases over potential deprivation of liberty of people lacking mental capacity. The issue was summed up thus:

“This case is about the criteria for judging whether the living arrangements made for a mentally incapacitated person amount to a deprivation of liberty. If they do, then the deprivation has to be authorised, either by a court or by the procedures known as the deprivation of liberty safeguards [DoLS], set out in the Mental Capacity Act 2005 (“the Mental Capacity Act”). If they do not, no independent check is made on whether those arrangements are in the best interests of the mentally incapacitated person.” (Cheshire West at 1)

Cheshire West was  intended to deal with the problem that local authority packages of care for people who lack mental capacity may constitute a breach of Article 5 of the European Convention on Human Rights on right to liberty.  This, even though the care may have been in a care home or the individual’s own home – a situation characterised as “gilded cages” by critics of the judgment. So deprivation of liberty can occur “in community and domestic settings where the State is responsible for imposing such arrangements” including supported living arrangements (Department of Health Guidance, October 2015).

Courts became the only backstop to gain authorisations for people lacking mental capacity (so unable to consent to deprivation of liberty) in care homes, or their own home under a care package, to prevent this putative deprivation of liberty occuring without legal sanction.

So court cases proliferated and backlogs grew. This is how Age UK described the problem:

“The number of applications not completed at the end of the reporting period increased by 7% on 2015/16, from 101 ,740 to 108,545 which is over 108,000 vulnerable adults who may be being illegally denied liberty or the right to associate freely with their own families at the moment.”

The new Bill
The Government is seeking to deal with the issue in the Mental Capacity (Amendment) Bill which introduces “Liberty Protection Safeguards” – but it has come up with a rather convoluted set of legal steps that caring bodies must follow to render this sort of “deprivation of liberty” lawful without having to go to court to sanction each one.

In a new Schedule 1AA to the Mental Capacity Act 2005, responsible bodies (such as local authorities offering care arrangements) must authorise deprivation of liberty with certain safeguards, including potentially the appointment of an Independent Mental Capacity Advocate (IMCA) for the individual concerned.

The problem – and it screams out to anyone reading the Bill – is regarding care homes where “the care home manager must arrange the relevant assessments and take the other necessary steps before an authorisation can be given by the responsible body”.

The care home manager makes a statement to the responsible body saying certain steps have been taken to safeguard the individual’s rights including: that an assessment has been made according to procedures set out in the legislation; an appropriate person has established the arrangements are necessary and proportionate; that necessary consultations have been undertaken (such as with anyone named by the cared-for person for the purpose or caring for her, any donee of a lasting power of attorney or an enduring power of attorney, any deputy appointed by the court, any “appropriate person” or independent mental capacity advocate concerned).

The problem
The responsible body would authorise the deprivation of liberty on the basis of this statement from the home manager. To an extent this looks like giving care home managers the power to mark their own homework – not least because a manager will have an interest in keeping the cared-for person in that care home.

This procedure has not found favour with organisations representing those with mental capacity issues because of the obvious conflict of interests involved – not merely in terms of the control with little oversight that it potentially gives care homes over the cared-for person, but the financial incentives home managers may have to be, let us say, not wholly objective in their assessments. So Age UK said:

“Under the Bill as it currently stands, care home managers will be required to undertake assessments that are presently conducted by the responsible body, such as the local authority. There is a fundamental conflict of interest with the role of care providers assessing arrangements within the services that they provide.”

So “where an assessor has a financial interest in the decision to deprive someone of liberty there must also be an independent external assessor”.

The government amendments
Up until November 2018 the Government had apparently ignored these criticisms. But suddenly, the health minister Lord O’Shaughnessy has got it. Introducing a series of amendments to the Mental Capacity (Amendment) Bill in the House of Lords, he said (5.15) on November 21: “You would have to have had ears of cloth not to have heard the concerns raised by noble Lords and stakeholders throughout the passage of the Bill about the proper role of care home managers.” So he was now authorised to say:

“I agree that we must be absolutely clear at this stage in legislation about what is the right role for those care home managers. I also agree that there should be no scope for any conflict of interest – not when we are talking about the safety and care of very vulnerable people – and that we should ensure that all assessments are completed by those with the appropriate experience and knowledge. Furthermore, people should always have confidence that they will have access to independent support and representation.”

Exactly. So now the proposal is to ensure “only responsible bodies can arrange the pre-authorisation review and that care home managers will be explicitly excluded from completing the pre-authorisation review”. The new amendments “will counteract any incentive the care home manager might have to ensure that a resident stays in a care home inappropriately” and also ensure “the care home manager cannot act as a gatekeeper to the IMCA appointment” – since an IMCA must be independent and, of course, be seen to be independent.

Questions outstanding
Sadly the government amendments actually put in yet another lumbering level of procedure rather than simply preventing care managers making the assessments for their statement to the responsible body. So now the responsible body (likely to be a local authority) will have a choice of making authorisations itself when a cared-for person is in a home (under paragraph 12 of the Bill; see below) or allowing the home’s manager to provide their statement (under paragraph 13) and act on it. If the manager is allowed to go ahead, s/he would no longer have a role in notifying the responsible body whether and IMCA should be appointed. Also (amendment 52):

“if the arrangements are care home arrangements and authorisation is being determined under paragraph 13 [where the care home manager does the assessment], an assessment may not be carried out by a person who has a prescribed connection with a care home”

The oddity of all this is that it leaves in place the possibility of home managers doing the assessment and submitting their statement – but the responsible body may step in and stop the home manager doing that. It’s not clear under what circumstances that would happen, and Lord O’Shaughnessy said merely this when introducing the amendment: that it

“requires the responsible body to make a decision on whether it is content that it is appropriate for the care home manager to carry out the relevant functions prior to authorisation, including arranging assessments and carrying out consultation”.

He went on to say:

“This power to remove the care home manager from the process can be enacted at any point, and we would expect it to be done at the earliest possible point, particularly if there are concerns.”

So the responsible body has – what? An investigatory duty to establish that the home manager is fit and proper or appropriate for the role? Can we be sure hard-pressed local authorities will take on this duty? There will be guidance to ensure consistency (almost an admission of a flaw in this scheme) and the amendment “significantly strengthens the role of local authorities in terms of oversight, intervention and supporting the quality of the operation of the scheme”. But why not simply leave it to local authorities and take care home managers out of the mix altogether?

And hasn’t his lordship misunderstood, or at least underplayed the conflict of interest in financial terms? It can’t just be about care home managers hiring in expertise with “a prescribed connection with [the] care home”.

Furthermore, it is interesting that his Lordship says we are “talking about the safety and care of very vulnerable people” rather than about their liberty – which is supposed to be the issue being dealt with by the new legislation. One can’t help thinking that the government is less concerned with actual liberty issues than gettting into place a legal procedure – any procedure – whereby people who can’t give consent can be deprived of liberty without too much court interference.

In the Lords Lady Barker welcomed these and other government amendments, saying: “I think we still have a difference of opinion about how life works in practice, but these amendments show a considerable movement.” So perhaps, rather like the madness occurring in The Other Place, this deal is simply better than no deal.

See also:
Deprivation of Liberty Safeguards chaos.

Materials
Mental Capacity (Amendment) Bill prior to amendments
Amendments presented on 21 November 2018 to the House of Lords report stage
Hansard in the Lords 21 November

Amendment presented by O’Shaughnessy
11A The responsible body may authorise arrangements—
(a) under paragraph 12, if the conditions in that paragraph are met, or
(b) under paragraph 13 if—
(i) the arrangements are care home arrangements,
(ii) the responsible body decides that authorisation should be determined under that paragraph instead of under paragraph 12, and
(iii) the conditions in paragraph 13 are met.”

The paragraphs of the Bill to which this refers:
Authorisation
Paragraph 12

The responsible body may authorise arrangements, other than
care home arrangements, if—

(a) the responsible body is satisfied that this Schedule applies
to the arrangements,

(b) the responsible body is satisfied, on the basis of the
15determinations required by paragraphs 15 and 16, that the
authorisation conditions are met,

(c) the responsible body has carried out consultation under
paragraph 17,

(d) the responsible body is satisfied that any requirement
20under paragraph 36 or 37, that arises in relation to the
arrangements before they are authorised, has been
complied with,

(e) a pre-authorisation review has been carried out in
accordance with paragraphs 18 to 20,

(f) 25the person carrying out the review has determined—

(i) under paragraph 19, that the authorisation
conditions are met, or

(ii) under paragraph 20, that it is reasonable for the
responsible body to conclude that those conditions
30are met, and

(g) a draft authorisation record has been prepared in
accordance with paragraph 21.

Paragraph 13
The responsible body may authorise care home arrangements if—

(a) the care home manager has provided the responsible body
35with a statement in accordance with paragraph 14,

(b) having regard to the statement (and the accompanying
material), the responsible body is satisfied—

(i) that this Schedule applies to the arrangements,

(ii) that the authorisation conditions are met, and

(iii) 40that the care home manager has carried out
consultation under paragraph 17,

(c) the responsible body is satisfied that any requirement
under paragraph 36 or 37, that arises in relation to the
arrangements before they are authorised, has been
45complied with,

Mental Capacity (Amendment) Bill Page 11

(d) a pre-authorisation review has been carried out in
accordance with paragraphs 18 to 20, and

(e) the person carrying out the review has determined—

(i) under paragraph 19, that the authorisation
5conditions are met, or

(ii) under paragraph 20, that it is reasonable for the
responsible body to conclude that those conditions
are met.

Paragraph 14
(1) A statement for the purposes of paragraph 13(a) is a statement by
10the care home manager—

(a) that the cared-for person is aged 18 or over,

(b) that the arrangements give rise to a deprivation of the
cared-for person’s liberty,

(c) that the arrangements are not excluded by Part 7,

(d) 15that the determinations required by paragraphs 15 and 16
have been made,

(e) that the care home manager has carried out consultation
under paragraph 17,

(f) that any requirement under paragraph 34, [regarding when an IMCA should be appointed] that arises in
20relation to the arrangements before they are authorised,
has been complied with, and

(g) that the care home manager—

(i) is satisfied that paragraph 18(2)(a) or (b) [review by an Approved Mental Capacity Professional if “ it is reasonable to believe that the cared-for person does not wish to reside in that place” or receive care there] applies,

(ii) is satisfied that neither applies, or

(iii) 25is not satisfied that a decision can be made as to
whether either applies.

(2) The statement—

(a) must include the reasons for what is stated under sub-
paragraph (1)(b) and (g);

(b) 30must be accompanied by—

(i) a record of the assessments on which the
determinations required by paragraph 15 were
made,

(ii) evidence of the consultation mentioned in sub-
35paragraph (1)(e), and

(iii) a draft authorisation record prepared in
accordance with paragraph 21.

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Filed under Analysis, ECHR, European Convention on Human Rights, Family Law, Human rights, Law, Social welfare, UK Law, Uncategorized, Welfare law

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