In March 2014 The House of Lords Select Committee provided their report on the implementation and effectiveness of the Mental Capacity Act 2005 (MCA). We have posted on this elsewhere in the blog. Overall the MCA as a piece of legislation was well regarded by professionals, practitioners and service user interest groups save for two aspects: the understanding and implementation of section 2 (the test for capacity) and the Deprivation of Liberty Safeguards (DOLS) provisions of Schedules A1 and 1A. Indeed the House of Lords has recommended that the DOLS provisions be repealed as soon as is practicable and replaced with provisions that properly protect P (the patient or person with whom the Court is concerned) and that are in line with the principles of the MCA as set out in section 1.
In my experience P has often regarded the DOLS provisions as a detaining instrument, as have the managers of the care homes and the social workers working with them. They are not. They are intended to protect P’s rights under Article 5; that is if the circumstances are such that P is deprived of his or her liberty then that deprivation must be lawfully authorised (by way of Schedule 1A MCA if P is in a hospital or care home, or by the Court if they are not). Also just as detention under the Mental Health Act can be challenged through the Mental Health Tribunal so a DOLS Authorisation can be challenged through the Court of Protection (both with non means tested legal aid available for legal representation).
Depriving a person of their liberty is very serious. It is one of our most ancient rights and goes back to the Magna Carta, which celebrates its 800th anniversary next year. A writ of habeas corpus: ‘Give up the Body’ can still be applied for to obtain the release of a person wrongly detained. Where a writ is obtained and the person is found to have been wrongly detained (perhaps in hospital under the Mental Health Act or in an immigration detention centre, police station or even prison), damages, and quite substantial damages, can be sought.
It is precisely because depriving a person of their liberty is so serious (even when it is in their best interests) that local authorities should ensure that care assessments and care plans are up to date and properly implemented at the time when an application for a Standard DOLS Authorisation is being sought or renewed. The Supervisory body should carefully scrutinise all six assessments including the mental health and mental capacity assessments often provided by psychiatrists. In my experience the mental capacity assessments provided in DOLS Authorisations are often woefully inadequate and certainly show no attempt by the practitioner to comply with section 2 MCA. Indeed the form is so short that it neither prompts nor encourages the mental capacity assessor to comply with section 2.
In the Best Interests Assessor’s assessment there should be clear evidence that all options for P have been considered to ensure that P is being deprived of his or her liberty as a last and only resort. A DOLS Authorisation often follows immediately after P has moved from his or her own home into residential care. Would the risk of harm to P have occurred or been as serious as alleged if P had remained at home? If it was a resources issue, ie that caring for P at home would have cost the local authority more than residential care, is it a proportionate difference in cost given that a move into residential care may result in depriving P of his or her liberty? Is the deprivation proportionate and necessary as well as in P’s best interests?
It is important that the most vulnerable in our society have their rights properly protected. In my view, there is currently no incentive for local authorities to get this right: Â there is no penalty for the local authority and no substantive remedy for P if a DOLS Authorisation is slipshod, or if the proper authorisation of a deprivation of liberty is delayed or not sought at all.
If the cost of getting things wrong, in terms of cash and reputation, was greater than getting it right, then we might start seeing some improvements.