L Series August 2018 Improving The Mental Capacity Amendment Bill

The Mental Capacity (Amendment) Bill 2018:
Five key areas for improving the Bill

This document was prepared in August 2018 by Dr Lucy Series, a Wellcome Research Fellow and Lecturer in Law at
Cardiff University. This briefing reflects my views, and not any organisation or group I am affiliated with. If you have
any questions about its contents please email SeriesL@cardiff.ac.uk
The Mental Capacity (Amendment) Bill was introduced into the House of Lords in July 2018, and will amend the
Mental Capacity Act 2005 (MCA). The Bill will affect the human rights of over three hundred thousand citizens in
England and Wales with conditions including dementia, learning disabilities and brain injuries, as well as their
families and caregivers.
The Bill introduces a new scheme, the Liberty Protection Safeguards (LPS) to replace the heavily criticised
deprivation of liberty safeguards (DoLS). It aims to provide the legal safeguards required by the European
Convention on Human Rights (ECHR) for people who are considered to lack the mental capacity to consent to their
care arrangements, and who are considered in law to be deprived of their liberty. It potentially offers a more
proportionate and flexible scheme than the DoLS. It aspires to bring the MCA into closer compliance with the UN
Convention on the Rights of Persons with Disabilities (CRPD). These are laudable aims, but further work is needed
on the Bill in order to achieve them. This document includes specific suggestions for improving the Bill.
Five key areas for improving the Bill

This document addresses five key areas of concern: strengthening respect for the wishes and feelings of the
person; clarifying the conditions for authorisation of deprivation of liberty; strengthening independent
safeguards; improving access to justice; and reforming the Court of Protection. Further detail on the background
to the Bill and these suggestions for amendment follows below.
1. Strengthen respect for the wishes and feelings of the person

a) Amend the MCA to place ‘particular weight’ on the wishes and feelings of the person when making best
interests decisions.
b) Empower people to nominate a supporter of their choice, giving supporters formal standing to access
information and help the person in decision making, providing protection for decisions involving third
parties, and strengthening safeguards for the person.
c) Reformulate (and retitle) the LPS duty to consult others as a ‘duty to ascertain the wishes and feelings of the
person’. There must be a clear statutory duty to consult the person themselves, and the scope of
consultation should consider past wishes and feelings, and the person’s values and beliefs.
2. Clarify the conditions for authorising deprivation of liberty

d) Codify that arrangements cannot be authorised if they conflict with a valid refusal by an attorney or a court
appointed deputy, or if they are to deliver treatment that the person has validly refused in advance.
e) Clarify whether authorisation can be granted for arrangements to deliver care or treatment that is not in the
best interests of the person, for example to prevent a risk to others.
1
Dr Lucy Series, August 2018
f) The test of whether the arrangements are ‘necessary and proportionate’ should be in relation to the
availability of alternatives, the seriousness and likelihood of risk to the person, and the person’s wishes and
feelings about the arrangements.
3. Strengthen independent checks and safeguards

g) Parliament should debate the adequacy of safeguards under the MCA for very serious health and welfare
decisions taken by professionals.
h) Adopt a broad approach to defining when a person should be treated as not wishing to reside in a place, or
to receive care or treatment, based on the approach to ‘objections’ under the Mental Health Act 1983.
i) Establish a right to request a referral to an Approved Mental Capacity Professional for the cared-for person,
and others with an interest in their care and welfare.
j) Place responsibilities for assessing capacity, ascertaining the wishes and feelings of the person and
conducting the test of necessity and proportionality on the responsible body in all cases, including in care
home arrangements.
k) Prohibit charges being levied upon the cared-for person for assessments or evidence provided by GPs, care
homes or others as part of the LPS authorisation process.
4. Improve access to justice to challenge decisions

l) Place the primary responsibility on the responsible body for ensuring cases are referred to court (or tribunal)
when the person’s right to a court review is engaged.
m) Everybody subject to an LPS authorisation should have an ‘appropriate person’ to support and represent
them, unless they have capacity and have refused this support. This should not be subject to a ‘best
interests’ test.
n) The selection of an ‘appropriate person’ should not be based on the person’s ‘best interests’ but on whether
that individual is both willing and able to support them in understanding and exercising rights of challenge
and review.
o) Access to advocacy should be available upon request (regardless of capacity), or when it appears that the
cared-for person and/or the ‘appropriate person’ are having, or would have, difficulty understanding and
exercising rights of challenge and review. This should not be subject to a best interests test.
p) All practicable steps must be taken to provide the person and those representing them with information
about the authorisation and their rights to request an AMCP assessment, advocacy, review and to challenge
the authorisation in court.
q) The Bill should specify who can be given information about the authorisation.
5. Reform the Court of Protection

r) The Court of Protection requires reform to promote efficiency, accessibility and participation. This requires
further careful consultation by the government.
2
Background to the Mental Capacity (Amendment) Bill
The Mental Capacity Act 2005 (MCA) governs when decisions can be made in the ‘best interests’ of people assessed
to lack ‘mental capacity’. It affects a wide range of fundamental human rights, including a person’s right to give or
refuse consent to medical treatment, to make decisions about where and with whom they live, decisions about
having contact with other people, personal relationships with others (including sex and marriage), and issues around
restraint and restrictions on liberty.
Generally speaking, decisions about health and welfare are made ‘informally’ under the MCA: professionals and
other caregivers rely upon a ‘general defence’ against liability if they follow the principles of the Act.1 For some
serious decisions, where there is nobody appropriate to consult about the person’s best interests, a referral to an
‘Independent Mental Capacity Advocate’ (IMCA) should be made.2 However, there are concerns about wide
variations in referral rates and a lack of understanding of the IMCA role, especially in healthcare.3 There are no other
statutory safeguards on even the most serious decisions made under the MCA, such as an independent second
opinion or a statutory requirement for judicial approval for certain decisions. The Supreme Court has recently
confirmed that even the most serious medical treatment decisions, such as the withdrawal of Artificial Nutrition and
Hydration from a person with a prolonged disorder of consciousness, do not always require an application to court.4
Although the MCA applies to all decisions, including those made by family carers, the most serious decisions such as
a move into long-term care, safeguarding issues such as contact with family members, and medical treatment
decisions are often made by health and social care professionals. Although in theory when disagreements arise the
person or their family can apply to the Court of Protection, our research shows that in reality this is almost
inaccessible to the person and their family. Court of Protection health and welfare proceedings are extremely costly,
and offer limited opportunities for the participation of the person themselves.5 There is a substantial imbalance of
power between disabled people, families and professionals under the MCA.
The MCA deprivation of liberty safeguards (DoLS) must be understood against this backdrop of informal decision
making for fundamental human rights issues, and widespread concerns about compliance with the Act.6 The DoLS
were introduced following the Bournewood case, when HL, a man with autism, was admitted ‘informally’ to
Bournewood Hospital in his ‘best interests’. His carers were prevented from visiting him in case he tried to leave,
but because his admission was not under the Mental Health Act 1983 there was no mechanism – such as an appeal
to a tribunal – that they could use to challenge the admission. Like many people with cognitive impairments,
especially those who have experienced long term institutionalisation and who are sedated – as HL was – HL did not
attempt to leave. Despite his evident distress at the admission he was not perceived by professionals as objecting.
1
This is contained in section 5 of the MCA. It means that so long as a person providing an act of care or treatment has taken
‘reasonable steps’ to establish whether the person has mental capacity in relation to the matter, and they ‘reasonably believe’
that the person lacks capacity and it is in their best interests, they have the same defence against liability that they would have if
the person had consented to the act. Further limitations are imposed by section 6, which states that if the act involves restraint
or a restriction on liberty it must be ‘necessary’ and proportionate to the likelihood and severity of the risk of harm that would
befall the person otherwise.
2
MCA s 35-41. These include a duty to make an IMCA referral for serious medical treatment decisions or a move into long term
residential care or hospital accommodation (but not other care settings), and a power for safeguarding cases or care reviews.
3
House of Lords Select Committee on the Mental Capacity Act 2005, Mental Capacity Act 2005: post-legislative scrutiny (HL
Paper 139, 2014) chapter 5.
4
An NHS Trust & Ors v Y & Anor [2018] UKSC 46.
5
Series L, Fennell P and Doughty J, Welfare cases in the Court of Protection: A statistical overview (Cardiff University, Report for
the Nuffield Foundation, 2017); Series L, Fennell P and Doughty J, The Participation of P in Welfare Cases in the Court of
Protection (Report for the Nuffield Foundation, Cardiff University, 2017).
6
Paper 139, 2014); Local Government Ombudsman, The Right to Decide: Towards a greater understanding of mental capacity and
deprivation of liberty (2017).
3
The European Court of Human Rights ruled that HL had been unlawfully deprived of his liberty: although he had not
actually attempted to leave, he was subject to ‘continuous supervision and control’ and was not ‘free to leave’. It
ruled that ‘informal’ admission in his best interests had not provided adequate checks and balances against
‘misjudgement and professional lapses’. His right to liberty had been violated.7
The DoLS attempted to provide protection for people who, like HL, were regarded as lacking the mental capacity to
consent to their care arrangements, and who were deprived of their liberty in care homes or hospitals. The DoLS
have been heavily criticised as excessively complex, bureaucratic, costly and offering very weak protection of human
rights. An inquiry by the House of Lords Select Committee on the MCA described them as ‘not fit for purpose’,
finding that ‘far from being used to protect individuals and their rights, they are sometimes used to oppress
individuals, and to force upon them decisions made by others without reference to the wishes and feelings of the
person concerned.’8
Safeguards including an independent assessment, access to advocacy and legal aid to challenge a decision in court
hinged on whether the person was considered to be ‘deprived of their liberty’ by those caring for them. The concept
was not defined by Parliament and left to the courts. Initially it was defined so restrictively that even a man who
attempted to break down the door of his care home trying to escape was not considered deprived of his liberty
because he had nowhere else to go.9 In 2014 the Supreme Court handed down a landmark ruling in Cheshire West
which defined ‘deprivation of liberty’ as meaning the same thing for everyone, no matter what their disability and
where they lived. The ‘acid test’ is whether they are subject to ‘continuous supervision and control’ and are not free
to leave.10 DoLS applications increased from a little over ten thousand in 2013 to over 200,000 in 2016-17. 11 Over
seventy percent of applications were not authorised within the statutory timescales, and those tasked with
administering the DoLS are left ‘having to work out how best to break the law’.12
The Mental Capacity (Amendment) Bill right aims to address this backlog by introducing a proportionate means of
authorising deprivation of liberty and protecting the person’s rights. Rightly, it provides safeguards to anyone who is
deprived of their liberty, even if they do not live in a care home or hospital. The Bill proposes to replace the DoLS
with ‘Liberty Protection Safeguards’ (LPS). The LPS scheme proposed by the government selectively adapts
proposals that were widely consulted upon by the Law Commission between 2015-2017.13 Unfortunately many key
proposals by the Commission are not in this Bill and it requires further work to satisfy the requirements of the ECHR
and bring the MCA into closer compliance with the CRPD.
7
HL v UK [2004] ECHR 720, at 121.
8
Paper 139, 2014), at p7.
9
C v Blackburn and Darwen Borough Council [2011] EWHC 3321 (COP).
10
P v Cheshire West and Chester Council and another; P and Q v Surrey County Council [2014] UKSC 19.
11
NHS Digital, ‘Mental Capacity Act (2005) Deprivation of Liberty Safeguards, (England) 2016/17, Official Statistics’ (2017)
<http://digital.nhs.uk/catalogue/PUB30131>.
12
Joint Committee on Human Rights, The Right to Freedom and Safety: Reform of the Deprivation of Liberty Safeguards (HC 890,
HL paper 161, 2018)
13
Law Commission, Mental capacity and deprivation of liberty: A consultation paper (Consultation Paper 222, 2015); Law
Commission, Mental Capacity and Deprivation of Liberty (Law Com No 372, 2017). The Law Commission’s draft Bill can be found
in Appendix A of their 2017 report.
4
Why does the Bill need further amendment?
1. Strengthen respect for the wishes and feelings of the person
a) Amend the MCA to place ‘particular weight’ on the wishes and feelings of the person when making
best interests decisions.
The UN CRPD places a stronger emphasis on respect for the ‘will and preferences of the person’ and supported
decision making than earlier human rights laws, and the MCA is widely regarded as needing amendment to reflect
this.14 The Law Commission’s modest proposals to bring the MCA into closer compliance with the CRPD included
amending the test of ‘best interests’15 to place ‘particular weight’ on the wishes and feelings of the person, and to
strengthen supported decision making provisions.16 Both proposals were well supported at consultation.17
A statutory requirement to place ‘particular weight’ on the wishes and feelings of the person would help address
concerns that the wishes and feelings of the person are not routinely prioritised in best interests decisions, and often
clinical judgments or resource considerations predominate.18 The government has indicated that a non-legislative
approach can ‘can drive the behaviour and cultural change needed’ and that if this does not work legislative changes
can be considered in the future.19 However it gives no indication of what could be tried that has not already, how it
will measure whether this ‘works’, and why it is not appropriate to use both legislative and non-legislative
approaches in tandem. Legislative amendment would be widely disseminated through training and through other
channels that a government campaign would struggle to reach.
b) Empower people to nominate a supporter of their choice, giving supporters formal standing to access
information and help the person in decision making, providing protection for decisions involving third
parties, and strengthening safeguards for the person.
Evidence suggests that people are not well supported to make decisions under the MCA in practice, and often the
friends or family they rely upon to help them make decisions are denied access to information or excluded from the
decision making process by professionals.20 Under the CRPD a person has a right to formally nominate their chosen
supporter,21 and many countries have implemented this,22 but the MCA creates no such right. A formal supported
14
Article 12 CRPD. See Martin W and others, The Essex Autonomy Project Three Jurisdictions Report: Towards Compliance with
CRPD Art. 12 in Capacity/Incapacity Legislation across the UK (2016) http://autonomy.essex.ac.uk/eap-three-jurisdictions-
report; Committee on the Rights of Persons with Disabilities, Concluding observations on the United Kingdom (29 August 2017,
UN Doc CRPD/C/GBR/CO/1, 2017).
15
MCA s4.
16
Law Commission 372, 2017, chapter 14.
17
Law Commission, Mental Capacity and Deprivation of Liberty - Consultation Analysis (2017).
18
Paper 139, 2014) para 2.
19
‘Annex A – Law Commission Recommendations and Government Responses’ to a Letter from Lord O’Shaughnessy following
the second reading of the Mental Capacity (Amendment) Bill, placed in the House of Lords Library on 25 July 2018.
20
Such situations are described in the House of Lords report (2014). For example, family members were asked to leave the
room during capacity assessments because they were trying to explain to the person in language they understood what a
professional was saying.
21
Paper 139, 2014) paragraph 29(d).
22
Representation Agreement Act 1995 (British Columbia, Canada); Decision Making, Support and Protection to Adults Act, 2003
(Yukon, Canada); The Adult Guardianship and Trusteeship Act 2008 (Alberta, Canada); Assisted Decision-Making (Capacity) Act
2015 (Republic of Ireland); Ley 9.379 para la Promoción de la Autonomía Personal de las Personas con Discapacidad ('Law for the
Promotion of Personal Autonomy of Persons with Disabilities', Civil Procedure Code No. 9,379, Costa Rica 2016); Capacity and
Guardianship (Amendment No. 18) Law, 5776-2016 (Israel); Supported Decision Making Agreement Act 2015 (Texas) SB No.
1881 2015; General Law on Persons with Disabilities 2017 (Law Nº 29973, Peru, 'Ley general de la personal con discapacidad').
5
decision making framework could impose standards, fiduciary duties and a regulatory structure for supporters.
Statutory confirmation that decisions made with support are legally valid can give confidence (and protection) to
third parties in accepting a person’s decision made with support. Some countries also permit co-decision making
agreements, which are similar to Lasting Powers of Attorney but require the person’s agreement for every decision
made by the co-decision maker, meaning their rights to involvement in individual decision and their ability to veto
decisions made by attorneys are strengthened.
The Law Commission’s proposed a power to make regulations to set up a supported decision making scheme. The
government however takes the view that ‘a new regulatory legislative scheme with the associated costs and
bureaucracy is an appropriate response at this time’.23 However the power would not commit the government to
introducing a scheme; it simply makes efficient use of Parliamentary time to enable the Minister to do so in the
future after further consultation and consideration.
c) Reformulate (and retitle) the LPS duty to consult others as a ‘duty to ascertain the wishes and feelings
of the person’. There must be a clear statutory duty to consult the person themselves, and the scope
of consultation should consider past wishes and feelings, and the person’s values and beliefs.
The LPS scheme requires the responsible body and care homes to consult with third parties about the wishes and
feelings of the person.24 There is no statutory requirement to consult with the person themselves. The scope of
consultation is narrower than under best interests, which also requires consideration of the person’s past wishes and
feelings, and their values and beliefs.25 These are especially important in situations where a person’s present wishes
and feelings are unclear. Retitling this duty as a duty to ascertain the wishes and feelings of the person, rather than
a duty to consult others about the person, refocuses attention on the person at the heart of the decision.
2. Clarify the conditions for authorising deprivation of liberty

d) Codify that arrangements cannot be authorised if they conflict with a valid refusal by an attorney or a
court appointed deputy, or if they are to deliver treatment that the person has validly refused in
advance.
As presently drafted the Bill permits a deprivation of liberty to be authorised whenever ‘the cared-for person lacks
the capacity to consent to the arrangements’, ‘the cared-for person is of unsound mind’, and ‘the arrangements are
necessary and proportionate.’ This leaves a number of unanswered questions that are likely to cause confusion on
the ground and give rise to costly and complex litigation.
Although the Bill is part of the MCA, there is no requirement that the ‘arrangements’ comply with the wider
provisions of the MCA in order to be authorised. The impact assessment draws a distinction between
‘‘arrangements enabling care or treatment to be provided’ (which the LPS scheme will authorise) and the ‘direct
delivery of the care and treatment’. The latter, it is claimed, is still governed by the ‘general defence’ outlined above
under section 5 of the MCA.26 It is not easy to see how this distinction will be drawn in practice, and there is no
provision in the Bill to ascertain compliance with the wider provisions of the MCA.
One area of potential confusion is whether attorneys appointed by the person through an LPA or court appointed
deputies can refuse consent to arrangements, and whether arrangements to secure treatment that has been validly
See also: Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws: Final Report (ALRC
Report 124, 2014).
23
24
Mental Capacity (Amendment) Bill draft Schedule AA1, clause 17.
25
MCA s4.
26
Department of Health and Social Care, Mental Capacity (Amendment) Bill: Explanatory Notes (2018), para 33.
6
refused by the person through an advance decision refusing treatment can be authorised. Under the DoLS the ‘no
refusals’ assessment means that they cannot.27 The Law Commission’s Bill specified that arrangements could not be
authorised if an attorney or deputy refused consent, although there was no requirement for the responsible body to
check whether this was the case and no provision for advance decisions refusing treatment.28 The Minister indicates
it is intended that attorneys and deputies will retain this power29 but does not explain why the relevant clause has
been removed from the government’s Bill. If the age limit of the Bill is lowered to include 16 and 17 year olds, similar
questions may arise in relation to refusals by parents and legal guardians.
e) Clarify whether authorisation can be granted for arrangements to deliver care or treatment that is not
in the best interests of the person, for example to prevent a risk to others.
The DoLS included a ‘best interests’ requirement, which meant an authorisation could only be granted if the
deprivation of liberty was: i) in the best interests of the person; ii) necessary in order to prevent harm to the person;
iii) a proportionate response to the likelihood and seriousness of the person suffering harm.30 The Law Commission
proposed removing ‘best interests’ from the authorisation conditions, and including in its place a test of whether it
was ‘necessary’ and ‘proportionate’ in relation either to the risk to the person, or risk to others.31
The Minister expresses the view that decisions must still satisfy the ‘best interests’ test of the MCA, and the
‘necessary and proportionate’ test is additional criteria to be satisfied if a deprivation of liberty arises.32 However
there is nothing in the LPS scheme to require the responsible body to consider best interests, and no assessments to
this effect. Particular uncertainty may arise in cases where a person is deprived of their liberty because of a risk to
others. The government’s Bill does not specify what the test of ‘necessity’ and ‘proportionality’ are in in relation
to.33 It is unclear whether it is intended to retain the element of ‘risk to others’.
f) The test of whether the arrangements are ‘necessary and proportionate’ should be in relation to the
availability of alternatives, the seriousness and likelihood of risk to the person, and the person’s
wishes and feelings about the arrangements.
Under the ECHR any deprivation of liberty must be necessary, in the sense that other alternatives have been
considered and rejected as insufficient,34 and it must be proportionate to achieve the stated aim.35 Consideration
must also be given to the wishes and feelings of the person.36
3. Strengthen independent checks and safeguards, especially for care home arrangements
g) Parliament should debate the adequacy of safeguards under the MCA for very serious health and
welfare decisions taken by professionals.
The MCA offers limited independent oversight of very serious decisions, including a move from the person’s home or
family into long-term residential or hospital care, serious medical treatments (including those the person objects to),
and interventions such as restricting contact with friends or family on safeguarding or other grounds. Often these
27
MCA Schedule A1, s18-20.
28
Law Commission 372 (2017) Draft Schedule AA1, clause 15, p208.
29
Lord O’Shaughnessy, HL Deb 16 July 2018 vol 792 col 1107; Letter from Lord O’Shaughnessy following the second reading of
the Mental Capacity (Amendment) Bill, placed in the House of Lords Library on 25 July 2018.
30
MCA Schedule A1, s16.
31
Law Com 372 (2017) Draft Schedule AA1 clause 16 (p 208).
32
Letter from Lord O’Shaughnessy following the second reading of the Mental Capacity (Amendment) Bill, placed in the House
of Lords Library on 25 July 2018.
33
Mental Capacity (Amendment) Bill clause 16.
34
Litwa v Poland [2000] ECHR 141, at para 78.
35
Ladent v Poland (Application no. 11036/03) 18 March 2008.
36
A.-M.V. v Finland (App no 53251/13) [2017] ECHR 273.
7
decisions are made by health and social care professionals, although they may also be made by attorneys and
deputies or others funding a person’s care. This applies across the entire scope of the MCA and not merely situations
involving a deprivation of liberty, although following Cheshire West these often coincide.
The Law Commission proposed that the MCA should be amended to include the modest safeguard of requiring
professionals to record in writing their assessments and decision making for certain very serious decisions, such as a
move into long term care or treatment that the person objects to.37 Even this proposal is unlikely to redress the
imbalance of power between the person, their family and professionals if a dispute arises.
The government appeared to accept this proposal38 but it does not feature in the Bill. The reasoning given by the
government is contradictory, asserting on the one hand that professionals ‘should already record these decisions in
care and treatment records’, yet that a statutory requirement to do so would ‘merely generate extra paperwork at
the expense of providing direct care’.39 The upshot is that in some of the most serious decisions made under the
MCA, there is no procedural safeguard, or even a requirement to document the reasons for the decision.
h) Adopt a broad approach to defining when a person should be treated as not wishing to reside in a
place, or to receive care or treatment, based on the approach to ‘objections’ under the Mental Health
Act 1983.
i) Establish a right to request a referral to an Approved Mental Capacity Professional for the cared-for
person, and others with an interest in their care and welfare.
The DoLS offered some independent oversight of decisions involving a deprivation of liberty, including at least one
independent assessment by a specially trained professional (a ‘best interests assessor’), formal assessments of
mental capacity, representation (often by a family member, but sometimes by a paid professional), and in some
cases advocacy. Following Cheshire West supervisory bodies have not been able to undertake independent
assessments on the scale required, leaving most people with no safeguards at all. The Law Commission and the
government has, understandably, sought to ration the resource of an independent assessment by an Approved
Mental Capacity Professional (AMCP) to the cases most in need of independent professional oversight.
The Law Commission considered an AMCP assessment would be necessary wherever it appeared that the person
was objecting to the arrangements, or because the arrangements are secured in respect of risk to others rather than
the person themselves.40 The government has retained the requirement for an AMCP referral where the person
objects but not cases of risk to others.41
In many situations involving the MCA the person’s views may be unclear, ambiguous or simply unknown. It is not
uncommon for different people to come to different views as to whether a person is objecting, or would object if
they were able to. The Bournewood case itself is an example of a situation where a person’s regular carers might
infer from their behaviour that they are distressed about their environment, but those providing treatment might
simply view this as ‘challenging behaviour’. It is very important both that the criteria for involving an AMCP are
construed as broadly as possible in the Code of Practice, based on similar guidance under the Mental Health Act42,
37
Law Commission draft Bill clause 9 (Law Com 372, 2017) p 197.
38
HM Government, Final Government Response to the Law Commission's review of Deprivation of Liberty Safeguards and Mental
Capacity (Department of Health and Social Care written statement, 14th March 2018, 2018) p 20.
39
40
Law Commission draft Bill draft Schedule AA1 clause 24 (Law Com 372, 2017) p 211.
41
Mental Capacity (Amendment) Bill, clause 18(2).
42
Department of Health, Mental Health Act 1983: Code of Practice (2015). Paragraph 13.51 reads: ‘Whether a patient is
objecting has to be considered in the round, taking into account all the circumstances, so far as they are reasonably
ascertainable. The decision to be made is whether the patient objects, the reasonableness of that objection is not the issue. In
8
and that there are mechanisms for families and others to request an AMCP referral where they have concerns. The
government has said that the new Code of Practice will set out other appropriate cases for AMCP referrals,43
however there is no explicit statutory power or duty to make referrals outside of situations where the person is
viewed as objecting.
j) Place responsibilities for assessing capacity, ascertaining the wishes and feelings of the person and
conducting the test of necessity and proportionality on the responsible body in all cases, including in
care home arrangements.
The Law Commission envisaged that responsible bodies would in all cases undertake or arrange the relevant
assessments. The government’s Bill creates a new scheme for people living in care homes, placing responsibility for
undertaking or arranging assessments and determining whether a person requires representation and advocacy (see
below) on care home managers. Care home managers must gather evidence on unsoundness of mind, capacity
assessments, and the test of necessity and proportionality, and submit this in a ‘statement’ to the responsible body,
along with a statement of whether in their ‘opinion’ it is in the person’s best interest to receive support from an
‘appropriate person’ and an advocate (discussed further below). The responsible body will undertake a review, issue
authorisations and appoint people to represent the person based only on information supplied by the care home.
There are already concerns about care homes’ understanding and application of the MCA and the DoLS, including
their ability to undertake capacity assessments.44 Many care homes lack a registered manager at all.45 In 8% of cases
DoLS assessors find that contrary to assessments by care homes or hospitals the person has the mental capacity to
decide where to live.46 It is doubtful that care homes already undertake assessments of necessity and
proportionality, and this will require at least some understanding of the meanings of these terms under the ECHR.
The Minister has written that ‘care home managers are not approving authorisations themselves; that role remains
with Local Authorities, which will provide independent scrutiny and oversight’.47 However unless the care home
manager themselves indicates that an AMCP referral is required, all the responsible body will be able to make the
decision on is the information supplied by the care home manager. This is a very weak independent safeguard.
The dangers are particularly acute for those moving into a care home from another setting. The aim of the LPS was
to ‘front load’ the assessments so that issues around capacity, the wishes and feelings of the person, and necessity
and proportionality are considered at the point when a decision is being made about where someone should live.
many cases the patient will be perfectly able to state their objection. In other cases the relevant person will need to consider the
patient’s behaviour, wishes, feelings, views, beliefs and values, both present and past, so far as they can be ascertained. In
deciding whether a patient objects to being admitted to hospital, or to some or all of the treatment they will receive there for
mental disorder, decision-makers should err on the side of caution and, where in doubt, take the position that a patient is
objecting.’
43
44
Care Quality Commission, The state of health care and adult social care in England 2016/17 (2017), p 120; House of Lords
Select Committee on the Mental Capacity Act 2005, Mental Capacity Act 2005: post-legislative scrutiny (HL Paper 139, 2014)
paras 67, 125, 269.
45
Skills for Care, ‘Registered managers in adult social care’ (NMDS-SC briefing 26, 2016) <
https://www.skillsforcare.org.uk/NMDS-SC-intelligence/Workforce-intelligence/documents/Briefing-26-Registered-managers-in-
adult-social-care.pdf> accessed 7 August 2018.
46
NHS Digital (2017) ‘Mental Capacity Act 2005, Deprivation of Liberty Safeguards (England), Annual Report 2016-17’,
supplementary Annex C, Taken from tables 4 and 5. <https://digital.nhs.uk/data-and-
information/publications/statistical/mental-capacity-act-2005-deprivation-of-liberty-safeguards-assessments/mental-capacity-
act-2005-deprivation-of-liberty-safeguards-england-2016-17-official-statistics#resources>
47
Letter from Lord O’Shaughnessy following the Second Reading of the Mental Capacity (Amendment) Bill, dated 24 July 2018
and placed in the House of Lords Library.
9
This is essential because both capacity assessments, and the tests of necessity and proportionality, are in relation to
the available alternatives. The Law Commission had envisioned the responsible body build this into their care
planning processes. However by shifting these questions to the care home manager, they will only be formally
considered at the point when a decision has already been reached and quite possibly implemented. This will not
only make it harder to reverse but it is also questionable how effectively a care home manager will be able to
present alternatives to living in their care home to the person (for the purpose of assessing capacity) and weigh this
up neutrally when considering necessity and proportionality. It is doubtful they will even know of the other
arrangements were potentially available to the person, such as remaining in their own home or living in other care
homes. In a flow diagram produced by the Department for Health and Social Care it is suggested that the LPS
requires this assessment to be conducted before a move into residential care, but this was equally true of the DoLS
and it did not operate as an effective safeguard then.
k) Prohibit charges being levied upon the cared-for person for assessments or evidence provided by GPs,
care homes or others as part of the LPS authorisation process.
The government believes that the Bill requires no additional resources from care homes48 as it is of the view that
care homes are already undertaking these assessments. Yet it is doubtful that they are, for example, gathering
evidence of ‘unsoundness of mind’ or formally documenting tests of necessity and proportionality in accordance
with the ECHR. These responsibilities will impose a resource burden on care providers who are already struggling49
and there is a danger that this cost will be passed on to the person themselves. Similarly, there is a danger that GPs
or others asked to provide evidence of ‘unsoundness of mind’ will charge the person.
4. Improve access to justice to challenge decisions

l) Place the primary responsibility on the responsible body for ensuring cases are referred to court (or
tribunal) when the person’s right to a court review is engaged.
The right to challenge a deprivation of liberty authorisation in court is a fundamental human rights safeguard
required by the ECHR. Its importance increases if the initial basis for detention does not involve a judicial decision.50
There are serious concerns about the mechanism for court review of a DoLS authorisation51 and there have been
numerous cases under the DoLS where this safeguard has not operated effectively, resulting in serious human rights
violations, most famously the case of Steven Neary.52 The rate of appeal under the DoLS is estimated to be lower
than 1%,53 a cause for considerable concern, yet the government anticipates that this will drop further to 0.5% under
the LPS scheme.54
48
This is costed at £0 in the impact assessment: Department of Health and Social Care, Mental Capacity (Amendment) Bill:
Impact Assessment (2018) p 23.
49
Local Government Association and the Association of Directors of Adult Social Services, ‘Briefing: The Mental Capacity
(Amendment) Bill Second Reading, House of Lords’ (16 July 2018) https://www.local.gov.uk/parliament/briefings-and-
responses/lga-and-adass-briefing-mental-capacity-amendment-bill-second.
50
D.D. v Lithuania (App no 13469/06) [2012] ECHR 254, para 164; Kędzior v Poland (App no 45026/07) [2012] ECHR 1809, para
76; Mihailovs v Latvia (App no 35939/10) [2013] ECHR 65, para 155.
51
Paper 139, 2014); Law Commission, Mental Capacity and Deprivation of Liberty - Consultation Analysis (2017) chapter 10.
52
London Borough of Hillingdon v Neary [2011] EWHC 1377 (COP); see also: Somerset v MK (Deprivation of Liberty: Best Interests
Decisions: Conduct of a Local Authority) [2014] EWCOP B25; Milton Keynes Council v RR & Ors [2014] EWCOP B19; Essex County
Council v RF & Ors (Deprivation of Liberty and damage) [2015] EWCOP 1. Local Government Ombudsman, The Right to Decide:
Towards a greater understanding of mental capacity and deprivation of liberty (2017).
53
the Nuffield Foundation, 2017).
54
Department of Health and Social Care, Mental Capacity (Amendment) Bill: Impact Assessment (2018) para 12.32.
10
Under the ECHR the right to bring a court review of the lawfulness of detention is unqualified: a person should not
rely upon the goodwill or discretion of others, 55 or have to prove any particular prospects of success.56 As the Court
of Protection recently expressed it: ‘there is no place’ in rights of appeal against detention for a ‘best interests
decision about the exercise of that right since that would potentially prevent the involvement of the court’.57 More
specifically, the concern is that if those responsible for arranging, providing or authorising the care also act as
gatekeepers to a person’s right of appeal, then they may not regard it as in the person’s best interests to be given
access to the support they need to challenge arrangements that they view as being in the person’s best interests.
There are serious problems with the DoLS appeal mechanism, not least its reliance on a complicated interaction
between the role of a ‘relevant person’s representative’ (often a family member), IMCAs and the supervisory body
itself. 58
Relying primarily on families helping a person to appeal places them under a considerable burden,59 and many may
themselves support the arrangements; our research demonstrates they only rarely initiate appeals under the DoLS.60
Advocacy referrals at present can scarcely keep up with demand, and advocates are facing impossible workloads
with dwindling resources. In this context it makes sense to place the primary responsibility for ensuring a person is
supported to exercise rights of appeal in court on the responsible body themselves. The responsible body, unlike
the person’s relatives, will have the professional knowledge and ready access to legal advice to initiate an application
when necessary, and can also be placed under a clear statutory duty to do so. The Joint Committee on Human
Rights recently endorsed this approach.61
m) Everybody subject to an LPS authorisation should have an ‘appropriate person’ to support and
represent them, unless they have capacity and have refused this support. This should not be subject to
a ‘best interests’ test.
n) The selection of an ‘appropriate person’ should not be based on the person’s ‘best interests’ but on
whether that individual is both willing and able to support them in understanding and exercising rights
of challenge and review.
o) Access to advocacy should be available upon request (regardless of capacity), or when it appears that
the cared-for person and/or the ‘appropriate person’ are having, or would have, difficulty
understanding and exercising rights of challenge and review. This should not be subject to a best
interests test.
The responsible body, inevitably, does have conflicts of interest in enabling a judicial challenge to its own decisions.
For this reason further safeguards will be necessary when this mechanism fails. At present the process for deciding
whether to appoint an appropriate person and/or an advocate, and who should act as as the appropriate person,
falls to a series of capacity assessments and best interests decisions made by the responsible body or care home
55
Stanev v Bulgaria [2012] ECHR 46 para 174; DD v Lithuania [2012] ECHR 254 para 166; Lashin v Russia [2012] ECHR 63 para
121; Shtukaturov v Russia [2008] ECHR 223 para 124; Sýkora v The Czech Republic [2012] ECHR 1960 para 79; MH v UK [2013]
ECHR paras 92 and 94.
56
Waite v The United Kingdom [2002] ECHR 804 paras 58, 59. See also Winterwerp v the Netherlands (App no 6301/73) [1979] 2
EHRR 387 para. 64.
57
AJ v A Local Authority [2015] EWCOP 5, para 88.
58
Law Commission, Mental capacity and deprivation of liberty: A consultation paper (Consultation Paper 222, 2015) para 2.33.
59
Paper 139, 2014).
60
61
Joint Committee on Human Rights, The Right to Freedom and Safety: Reform of the Deprivation of Liberty Safeguards (HC 890,
HL paper 161, 2018).
11
manager. Convention and domestic case law has made clear that ‘best interests’ should not play a role in supporting
the exercise of rights of appeal. There is a danger that a view will be taken that it is in a person’s best interests to
remain where they are, or that a person has poor prospects of succeeding, and therefore it is not in their best
interests to be supported to challenge the detention in court. This would be illegitimate under the ECHR.
The person’s access to support from an appropriate person and an advocate should be based on whether they would
need this support to enable them to understand and exercise rights of appeal. This is likely to be the case for most
people under the scheme. At present, the Bill leaves open the possibility that a ‘best interests’ decision will be taken
not to appoint an appropriate person, or – bizarrely – that someone might be appointed who themselves lacks
capacity to request an IMCA, suggesting they are not fit to undertake that role.
p) All practicable steps must be taken to provide the person and those representing them with
information about the authorisation and their rights to request an AMCP assessment, advocacy,
review and to challenge the authorisation in court.
q) The Bill should specify who can be given information about the authorisation.
Another key safeguard under the ECHR is the right to be given information about the legal and factual basis for a
detention, to enable the exercise of rights of appeal. .62 When a person would not understand this information, the
Strasbourg court has held that it should be communicated to others able to represent their interests.63 This is
provided for under the DoLS, but oddly not under the LPS scheme.
5. Reform the Court of Protection

r) The Court of Protection requires reform to promote efficiency, accessibility and participation. This
requires further careful consultation by the government.
Throughout the history of the MCA those consulted about the most appropriate judicial forum have answered in the
main that it should be accessible, efficient, and promote participation, with many advocating a tribunal for these
reasons. The Court of Protection, in contrast, is extremely costly,64 and is experienced by many as ‘remote,
inaccessible and not well understood’.65 There is a strong emphasis on the direct participation of the person in the
proceedings under the ECHR, including attending hearings or meeting the judge.66 Yet although the Court of
Protection Rules were recently amended to require judges to consider how the person should participate,67 they
have no statutory right to do so and the enabling framework of reasonable accommodations and special measures is
not available to make this a realistic possibility in many cases. Our research, conducted in 2015, suggests this rarely
happens.68
62
Van Der Leer v The Netherlands (App no 11509/85) (1990) 12 EHRR 567, para 28; X v United Kingdom (App no 7215/75) [1981]
ECHR 6; LM v Slovenia (App no 32863/05) Chamber Judgment [2014] ECHR 608.
63
LM v Slovenia (App no 32863/05) Chamber Judgment [2014] ECHR 608, para 144; X v UK (App no 6998/75) [1980] ECHR
Report of the Commission (Adopted on 16 July 1980), para 106; ZH v Hungary (App no 28973/11) - Hejud [2012] ECHR 1891,
para 41.
64
65
Paper 139, 2014) para 203.
66
For a recent example see DR v Lithuania [2018] ECHR 548. For further discussion see: Series L, Fennell P and Doughty J, The
Participation of P in Welfare Cases in the Court of Protection (Report for the Nuffield Foundation, Cardiff University, 2017).
67
The Court of Protection (Amendment) Rules 2017 SI 2017/1035 Rule 1.2. Formerly Rule 3A of the Court of Protection Rules
2007, as amended in 2015.
68
12
The Bill is a missed opportunity to reform the Court of Protection to improve access for those considered to lack
capacity and those close to them, to reduce costs and delay and to address fundamental human rights concerns
about the participation of the person themselves.
The government has stated that ‘The Mental Health Act Review is considering relationships between the Court of
Protection and Mental Health Tribunals regarding challenges to Liberty Protection Safeguards.’69 However there is
no suggestion of this in the review’s interim report beyond a passing reference.70 This is not in the review’s terms of
reference and there has been no explicit public consultation on this front. Reforming the Court of Protection, and
merging it with a tribunal, raise difficult legal, practical and even constitutional71 questions and would require a
dedicated consultation by the government.
69
70
Wessely S and others, The independent review of the Mental Health Act: Interim report (2018).
71
This is because the tribunal for reviews under the Mental Health Act 1983 is devolved in Wales, but the Court of Protection is
not. This means that Westminster cannot simply impose the additional duty of hearing Court of Protection cases on the Welsh
tribunals, and so this would require specific attention and consideration.
13

L Series August 2018 Improving The Mental Capacity Amendment Bill

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L Series August 2018 Improving The Mental Capacity Amendment Bill

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The Mental Capacity (Amendment) Bill 2018:

Five key areas for improving the Bill

Five key areas for improving the Bill

1. Strengthen respect for the wishes and feelings of the person

2. Clarify the conditions for authorising deprivation of liberty

3. Strengthen independent checks and safeguards

4. Improve access to justice to challenge decisions

5. Reform the Court of Protection

2. Clarify the conditions for authorising deprivation of liberty

4. Improve access to justice to challenge decisions

5. Reform the Court of Protection

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