The ‘remaining stages’ of the Mental Capacity (Amendment) Bill in the House of Commons have been scheduled for Tuesday 12 February 2019. This usually includes both Report and Third Reading, which means that only the Consideration of Amendments stage (otherwise known as ‘ping pong’) will remain. Since my last blog on the progress of the Bill, we’ve had the Committee Stage. A whopping seventy-eight pieces of written evidence were published by the Public Bill committee, covering a huge range of concerns. My own written evidence (available here) covered: Placing P at the centre of the DOLS process; the missed opportunities for wider reform of the MCA; conflicts of interest; lawfulness (or, more accurately, unlawfulness) and the proposed definition of deprivation of liberty.
I don’t want to re-hash those arguments again here. Instead, I simply want to reflect on what has changed at committee stage, what hasn’t, and what further proposals have been put forward by the Government (so far) for amendment on Report. As I see it, there is some good news, some mediocre news, and some bad news.
Let’s start with the ‘good news’:
Significant changes were made to the Bill in committee to ensure that pre-authorisation reviews will be undertaken by an AMCP where the arrangements provide for the cared-for person to receive care or treatment in an independent hospital. The Minister has proposed further amendments at Report stage that will make the responsible local authority (in England) and the Local Health Board (in Wales) the responsible body for arrangements in independent hospitals. This is very good news, and a significant improvement to the Bill.
The opposition amendment on information provision added in the House of Lords didn’t survive the committee stage. It was replaced with a government amendment, which gives rights to information after authorisation of a deprivation of liberty. Additional government amendments tabled for Report will add further information provision duties on responsible bodies, including general accessible information requirements and duties on responsible bodies to ensure that the cared for person (and any appropriate person they have) understand the relevant information before the authorisation. That is, unless “it is not appropriate to take steps to ensure that the cared for person or any appropriate person understands a particular matter,” where the duty to ensure understanding doesn’t apply. We’ll have to wait and see what examples the Minister will give to explain the scope and extent of this “not appropriate” exception. Overall though, these new information provision rights and duties are an important and welcome change to the Bill.
The mediocre news:
Access to IMCAs
The provisions for appointing an IMCA have been significantly improved since the Bill was first introduced. In most cases, the appointment of an IMCA is no longer subject to a gatekeeping ‘best interests’ assessment. There is one outstanding trouble spot in these provisions, however. This is that if a cared-for person has an ‘appropriate person’ who does not have the capacity to consent to being supported by an IMCA, then an IMCA will only be appointed if it would be in the cared-for person’s best interests for the appropriate person to be supported by an IMCA. I’m not sure how often this kind of situation would occur, but it would be worth those working with the MCA and deprivation of liberty thinking through some possible examples to see if this needs to be amended.
The proposed Government information provision amendments for Report will now require responsible bodies to publish information on reviews, including when a review will be carried out; the rights to request a review; and when AMCPs will be involved in reviews. Again, this is a positive amendment. I am still concerned, however, that there is no minimum standard for reviews on the face of the Bill. Leaving the timescales for reviews up to individual responsible bodies has the benefit of providing flexibility. But, of course, wherever there is flexibility there is also the scope for significant variation depending on geographical location. We will all have to be alert to the potential for a postcode lottery in DoLS provision.
And, finally, the bad news:
Defining ‘Deprivation of Liberty’
There is now a definition of ‘deprivation of liberty’. The arguments for a definition were that it would provide clarity, in a way that was lacking from the current MCA definition. That is simply that ‘deprivation of liberty’ has “the same meaning as in Article 5(1) of the Human Rights Convention.” (MCA s. 64(5)). Admittedly, this definition, which relies on a body of evolving jurisprudence derived from an international court (the ECtHR) and the UK courts, isn’t the most straightforward. It doesn’t make it easy for a person looking at the MCA to know what would, and what would not, constitute a deprivation of someone’s liberty. But then, neither does the definition that now appears on the face of the Bill at clause 1. Like many of the legal professionals that submitted evidence to the Public Bill Committee I’m convinced that the new definition will be unhelpful, unlawful and ultimately unworkable.
I understand the desire for a definition, I really do. Law is often experienced as complicated and alienating. Depending on case law for the definition of important practical concepts can lead to meanings changing unexpectedly in challenging ways. That can mean extra training is required for staff on the ground, and extra costs can be generated. But the problem that we have is that ‘deprivation of liberty’ is a concept that comes from an international human rights treaty. The need for safeguards for those who lack the capacity to consent to care and treatment that deprives them of their liberty is grounded in the interpretation of Article 5 by the European Court of Human Rights. We cannot escape this legal reality. And so, the definition needs to be rethought, re-drafted or removed from the Bill. If it isn’t, then it will simply pave the way for a new raft of costly litigation to delineate the parameters of the definition, more costs and more unexpected change.
The issue of renewals under the Bill (which allows for two periods of 12 months, followed by an unlimited number of 3 year periods) has not changed. I am concerned about the renewal process for four main reasons. 1) The lack of minimum review standards on the face of the Bill means that we have no way of knowing how long people who have an authorisation renewed for 3 years will go without an automatic review. 2) No provision is made on the face of the Bill for independent scrutiny of authorisation renewals. 3) In care home arrangements, the consultation is to be carried out by the Care Home Manager, which I consider raises issues of potential conflicts of interests, particularly where there are poor relationships between family members and care home staff. 4) there is no clear requirement for new assessments at renewal, no matter how long it has been since the assessments were carried out.
Most of the provisions in the Bill have improved since it was first introduced into the Lords in July 2018. The question of renewals has not. Instead, the Government mantra has been that the 3 year renewal period was a Law Commission recommendation. This is true; it was. But we must not forget that the Law Commission also recommended wider changes to the Mental Capacity Act 2005 to bring it closer to compliance with the UN Convention on the Rights of Persons with Disabilities. These wider reforms included giving the cared-for person’s wishes and feeling precedence in all best interests decisions, and a power to introduce regulations for a formal supported decision-making scheme. A major impetus for these wider reform proposals was to help more people to make more decisions for themselves, and have more chance to influence decisions about their care and treatment.
This Bill is reaching the end of its journey through Parliament. I think it will be in very many ways, as a consequence of the hard work by very many people, a much better Bill than it would have otherwise been. But there are areas that are still not right, and it is intellectually disabled people and their families who will bear the costs of the Bill not being right. The way this Bill has progressed through Parliament has given me a great deal to think about – about the relationship between independent law reform proposals, party politics and political ideology; about the place of the House of Lords in the legislative process; and about the difficulty of making the voices of vulnerable people heard in the corridors of power. No doubt I’ll write about these thoughts in the coming weeks and months. For now, let’s wait and see what happens with the final stages of the Bill, and the MCA Code of Practice review (don’t forget to respond to the consultation!)
 Including the Court of Protection Practitioner’s Association, Doughty Street Chambers Court of Protection Team, and Irwin Mitchell solicitors (see https://services.parliament.uk/Bills/2017-19/mentalcapacityamendment/documents.html)
 Under Schedule AA1, Paragraph 18(6) “The assessment may be one carried out for an earlier authorisation or for any other purpose, provided that it appears to the relevant person that it is reasonable to rely on the assessment.”