In their report on the Mental Capacity Act the House of Lords address the current deficiencies in the procedure of the Deprivation of Liberty Safeguards (DoLS) and make recommendations for their improvement.
Again, I look at the recommendation from the point of view of my clients, how I advise them and the potential impact on them if implemented.
Concerns and criticisms of the current framework
The Lords heard a lot of criticism about the use of the DoLS in practice and were concerned that ‘there is a very real risk that the Deprivation of Liberty Safeguards are frequently not used when they should be, leaving individuals without the safeguards Parliament intended, and leaving care providers vulnerable to legal challenge.’
I frequently see poor mental capacity assessments used to authorise someone being deprived of their liberty. Some of my clients, for various reasons, will not speak freely to those who they consider to have incarcerated them. As a result, the assessor often feels that they have no option but to go on previous assessments and (because the overwhelming professional opinion is that it is in P’s best interests to be in that position) concludes that P lacks capacity to make accommodation and treatment decisions.
On a strict application of the Act, its Principles and the test for assessing capacity, I cannot see that this is lawful; it potentially falls foul of the requirement not to establish a lack of capacity by reference to an aspect of his behaviour which might lead others to make unjustified assumptions about his capacity. Sadly, this strikes me as adopting an outcome based approached, as opposed to applying the capacity test first, best interests secondâ€ approach set out in the Act.
In every situation, but perhaps fundamentally in situations where an individual’s liberty is at stake, the mental capacity assessments should be water tight and strictly follow the test set out in the Act in accordance with the Principles.
Simplifying is empowering
Having listened to the Supreme Court judgment in Cheshire West handed down this week (a post will follow specifically on that) I was encouraged to hear Lady Hale remind the world that those with an intellectual disability have the same human rights as everyone. The judgment has a theme of empowerment and recognition of human rights, but acknowledges the requirement for the Safeguards.
I therefore have a feeling that the judgment was delayed so that the Supreme Court judges could consider the report of their fellow Lords. In re-defining the legal test for deprivation of liberty to a definition that will encompass more adults, not fewer, this fits squarely within the recommendations made by the Lords in the Report.
The Lords are not recommending a statutory definition of the test, but they have called for replacement legislative process and forms “to be drafted in clear and simple terms, to ensure that they can be understood and applied effectively by professionals, individuals, families and carers.”
I go back to my clients. Some of them do have a limited ability to try to understand why they have been deprived of their liberty. They are often given the Best Interests assessment and the Standard Authorisation, but no explanation as to what they mean. At that point, I don’t need to be explaining the finer detail of any definition of whether they are, in law, deprived of their liberty. They are usually so very far past that difficult fine line that the Supreme Court has had to deal with recently, that this is not an issue.
Instead, I advise on the procedure, the separate qualifying criteria and what it means for them. I choose my words very carefully so that I don’t add further distress or patronise them. I don’t want to make them feel like they have done something wrong, or are thought to be mentally ill, stupid or ‘crazy’ (a word clients often use when describing how professionals make them feel). It is not easy to get such a convoluted message across so I endorse the Lords’ recommendation and also suggest that work is done to put this into easy read versions, and give more resources to institutions and advocates to go through the framework with the individual deprived of his liberty.
Delays in challenging – more advice problems
If a client has had previous contact with the Mental Health system (as I am finding more frequently they have), they will be accustomed to being in a tribunal quite quickly, with reports prepared and ready for challenge. The difficulty then is trying to explain that it might take some time for the court to order a report, consider the report and then make a decision, but that sometimes the parties might agree and it might not take as long. For someone who is confined within the same four walls every day, this isn’t particularly helpful. It just feeds the uncertainty and causes more distress. I want to be clear and certain with my clients as they are frequently unable to understand even the simplest of matters.
The Lords rejected the request for a Mental Capacity Act Tribunal on the evidence presented to it that it would not add much and may remove the current expertise of those advising on and deciding the cases. Instead it recommends improved systems in the Court of Protection to address concerns of delays and inefficacy. I have not quite made my mind up on this, and wonder whether the Statutory Body could have some initial independent review function, before or at the same time that the application to the court is made pursuant to what is currently s21A of the Act.
I really want to see what the comprehensive review comes up with. It should ensure that the Principles of the Act are at the heart of it, with simpler forms, simpler processes and better education so that the assessments are of a higher and more accurate quality. That would be a start, but the devil will be in the detail.