THE MENTAL CAPACITY ACT
Hiding underneath all of the Brexit chaos, this Government are quietly hoping to sneak through new legislation that would make it easier for individuals lacking capacity to be deprived of their liberty. The Mental Capacity (Amendment) Bill is proposing to make some significant changes to the legal framework around the deprivation of liberty safeguards for persons lacking capacity as a result of a 2014 Supreme Court ruling. In the case of P v Cheshire West and Chester Council, the highest judges ruled that individuals lacking capacity to make decisions for them and are under continuous supervision and control and lack the option to leave their care setting are deprived of their liberty. Whilst, the intention of the judgement I believe has been to deal with situations in institutionalised care settings such as residential and nursing care homes, it was not the case. The Cheshire West case has the potential to cover all homes where the local authority has been providing some kind of support under Care Act 2014 provisions. As a consequence, Local Authorities began assessing whether disabled people lacking capacity with care packages are being deprived of their liberty within their parents or own home. It ended up in a bizarre situation where individuals with an extensive care package with a full-life and living in their own homes were being assessed under Deprivation of Liberty safeguards. However, I believe the principle that someone can be deprived of their own liberty can take place in supported living accommodation, shared lives accommodation as well as residing in family or own home. Insufficient or lazy care support staff can too often contribute towards disabled people lacking capacity being prisoners within their own home and therefore some independent due process needs to be in place to ensure their liberty is being not only restricted but promoted by the local authority.
To deal with the back-log of deprivation of liberty authorisations which must be approved by local authorities, the Government is bringing in legislative reforms. The Mental Capacity (Amendment) Bill proposes to cover persons lacking capacity or with fluctuating capacity from 16 years of age. The proposed Liberty Protection Safeguards scheme will replace the current Deprivation of Liberty safeguards.
Unlike now, care homes will be able to deprive or restrict residents or liberty without having authorisation from the local authority or court of protection. The Care home manager will become responsible for determining whether an individual lacking capacity should have their liberty restricted if it’s in their best interests to do so. And that it will be for the care home to decide whether it is in the resident’s best interests to be placed on PLS order and even being able to benefit from advocacy support. No consideration needs to be taken around sufficiency and quality of staffing levels and their understanding of working with individuals lacking capacity. Clearly there appears to be a severe conflict of interest between the care provider and person lacking capacity. Care providers can easily consider PLS if they do not have sufficient funding and resources in place to support residents in the community.
The bill for me starts from the wrong place, how can we talk about the right of depriving someone’s liberty in the community without having a corresponding right to have one’s liberty promoted by the state. The bill does not incorporate the UN Convention Rights of Persons with Disabilities relevant articles around promoting independent living, autonomy and control and supported decision making. If the UNCRPD is incorporated in the bill, then the centre provision should be the care home’s duty around maximising residents’ liberty, to a similar level experienced by their non-disabled peers. After all, people lacking capacity are not criminals and therefore should not be treated as prisoners within their own homes – being disabled is not a crime!
However, there could be times where common sense may need to prevail around care home managers having to make decisions around depriving residents’ liberty on a moment by moment basis without having to engage in a bureaucratic process. People living with dementia where they have no sense of where they are going or is likely to put their own life at danger may require staff bolting the care home doors. Similarly, individuals coming out of a diabetic or epileptic seizure may not be in a position to make a decision until they have sufficiently recovered to regain capacity. Whilst, we are acutely aware of other people making decisions about restrictions of liberty for those lacking capacity, nevertheless are we aware of the same being done for us in our every-day lives. For instance the police, other emergency services or indeed anyone owing a duty of care to us will be given the power either by the state or organisation to restrict our liberty at any given time without any beacuratric process.
If we accept that our liberty can at any time be constrained by public authorities or service providers then where does the line get drawn for disabled people lacking capacity with or without safeguards?