MENTAL CAPACITY BILL
The Government are amending the Mental Capacity Act, the legal framework governing how decisions must be made on behalf of persons lacking mental capacity within health and social care settings by local authorities and hospitals. People lacking capacity are typically individuals with significant learning difficulties, dementia or experience brain injury who are unable to make some or few decisions about their care and treatment. Currently, deprivation of liberty safeguards or DOLs is the statutory scheme used to restrict individuals lacking mental capacity’s freedom whilst living in registered care homes and hospitals. However since the Cheshire West & Chester Council v P court judgement local authorities are required to initiate DOLS scheme if someone’s freedom is being restricted whilst living in or using any community setting such as a supported living placement, living by oneself in their own home with Personal Assistants or possibility using a day centre service. In a blog it was reported that a local authority has used DOLS process to consider whether Direct Payments support workers were restricting an individual’s freedom in his own home.
Currently the Mental Capacity Act allows local authorities and hospitals to authorise treatment and care DOL for a person lacking mental capacity. Local authorities are required to coordinate various assessments including best interests ones which include consultation with specified people involved in the life of person lacking mental capacity’s life, to be reviewed by an approved independent mental capacity practitioner. However, the Mental Capacity (Amendment) Bill’s proposals will replace DOLs with Protection of Liberty Safeguards (PLS) with weak safeguards for people lacking mental capacity and is of an unsound mind and that the restrictions upon their freedom is necessary and proportionate in the following ways.
Under the Mental Capacity Act doctors assessments centre on person’s having a mental disorder as defined by the world health organisation’s classification of mental disorder. However, under the bill’s provisions, doctor assessment will focus on whether a person is of an unsound mind, which has not been defined and relies upon subjective judgements.
Deprivation of Liberty (DOLS) authorisation can only be made if the aim of the authorisation is to prevent harm to the person who is lacking mental capacity. However, the proposed PLS authorisation maybe authorised if the aim of the restrictions of freedom is to prevent harm to the person lacking mental capacity in care or to other people such as care workers and members of the public.
Core essence of PLS application is to consider whether the authorisation of restricting individuals lacking mental capacity’s freedom is proportionate and necessary without a requirement to consider alternative arrangements such as increasing staffing levels within a care setting If the provisions become law, Care Home Managers will become responsible for arranging assessments for people deprived of their liberty and are involved in decisions around independent representation including benefits of having an Independent Mental Capacity Advocate. Thus, people lacking mental capacity will no longer have an automatic entitlement to an Independent Mental Capacity Advocate.
There will only be a duty to refer a PLS application to a local authority’s Approved Mental Capacity Professional when a care manager becomes aware that the person lacking capacity is objecting or unhappy with their care arrangements. In other words, unless a complaint is made, there will be no independent scrutiny of whether it’s in the person lacing mental capacity’s best interest to be deprived of their liberty. I expect many PLS applications will not be reviewed by Approved Mental Capacity Professional because individuals’ objections are likely to be overlooked or dismissed by care home managers. As many people lacking capacity have experienced little control over their lives, it is very unlikely that they would simply complain and successfully challenge their PLS approval. For example I know of residents unable to go out during the weekends because of limited staff cover. There is clearly a conflict of interest when care home social care budgets are squeezed, managers could use PLS authorisation as a means of forcing residents to accept restrictive care arrangements.
Guidance around decisions being made in individuals lacking mental capacity’s best interests is a core component of Mental Capacity Act and Mental Capacity Amendment Bill. The Law Commission proposed best interests’ decision making process must place “particular weight” on the wishes, feelings, beliefs and values of the person lacking capacity which has not been taken up by Government. Unfortunately, the Best Interests legal definition remains in place that does not give preference to individual’s views. There are indeed questions about whether the Mental Capacity (Amendment) Bill compatibility with UN Convention for Persons with Disabilities and European Convention on Human Rights standards around deprivation of liberty. Care Home providers making a decision to restrict a person’s freedom without an independent review by a body unconnected to the day-to-day care of residents can result in abuse particularly when PLS are being to justify restricting their freedom in lieu of insufficient care and support.
On a broader note my main criticism about the Mental Capacity Act, the Mental Capacity amended bill and Law Commission’s recommendations are that they all focus on restricting individuals liberty. We need legislation that promotes and maximises our liberty; our public bodies must be placed under a positive duty to facilitate and fund the support we need to enjoy the same level of liberty that individuals without impairments take for granted. The UNCRPD monitoring committee of Government’s compliance with their UNCRPD obligations recommendations make it very clear that the Government must resource independent living if they are going to comply with their CRPD obligations and duties under Article 19. Moreover, the committee recommended that supported decision making should replace substituted decision making if individuals lack mental capacity to make a specific decision. Whilst I agree with the sentiments, the question is when does supported decision making becomes substituted decision making and via versus. There will always be decisions that will need to be made on behalf of anyone loosing capacity, during times of unconsciousness or illness for example. I very much hoped hospitals will make a substituted decision for me that is to administer treatment to keep me alive, otherwise the alternative would be, no decision is made, and death prevails. The current law says the care plan restrictions aim to prevent harm just to the person.
Under the new law, restrictions might aim to prevent harm to the person in care or to other people.