Our government’s proposals to rename and extend Deprivation of Liberty Orders with Liberty Protection Safeguards and create Approved Mental Capacity Practitioners will as the government state;
‘ensure that the design of the new system fits with the conditions of the sector, taking into account the future direction of health and social care.’
Shouldn’t the government ensure that care is fit for purpose and not merely for’the conditions of the sector’ whose overriding motivation is to make profit ?
So government ‘fits the sector’, a for profit one, by allowing it to be autonomous, self regulating and enforce the MCA.
And outsourcing LAs and NHS CCGs are given the power to remove an individual’s legal competency via a paid MCP rather than a COP judge, to harvest those from whom corporate profit is made without independent safeguards.
Smashing Art 12 (1) European Convention on Human Rights, Art 5 Right to Liberty, Art 8 Right to Family Life. and Art 6 Right to a Fair Hearing.
So this is the Tory’s shrinking state and social conscience?
With the conflicts of interests of LA and CCGs approving and paying the Mental Capacity Practitioners and commissioning the care providers.
The incomprehensibility and unworkability of the Mental Capacity Act the most draconian and only Act of its kind in the world is legendary.
And now an approved mental capacity assessor is effectively charged with enforcing it.
The MCA barely got through Parliament, even with a large Labour majority and took two years to get through the House of Lords and then was made subject to a review .
And this review was devastating.
The House of Lords Select Committee in March 2014 found
’ the poor implementation of the Act by health professionals, is to some extent, symptomatic of a wider marginalisation of mental health issues’.
The College of Social Work giving evidence that the Act was,
‘ not fully understood by professionals, as an enabling piece of legislation, while families and carers painted a depressing picture of their exclusion from decision making’.
https://finolamoss.wordpress.com/2014/11/18/power-of-state-given-by-mental-capacity-act-05-house-of-lords-select-committee-findings/
Despite this, nothing was done to end the MCA’s illegal implementation, nor involve the family or service user, the executive merely increasing MCA ‘awareness’.
And now it appears handing its implementation to its chosen for profit service providers via their commissioners.
Surely there must be some safeguard/check on such a ginormous thing as the removal of any citizen of England and Wales’s legal competency?
But there isn’t.
Once a person is even suspected of being ‘incapable’, a term ever more diluted to in the Care Act ‘difficulty making decisions’, he, nor his family can effectively apply to the Court of Protection.
An application for Guardianship is expensive, revocable and need recommendations from those caring for the suspected ‘incapable’ ie GPs , Social workers who will be part of the state private care pathway and MASH.
Powers of Attorney are being voided on the grounds of incapacity and the only representation allowed and funded is via an on message Official Solicitor.
Dols are of a precarious legal nature created in 2009 on the excuse of the incompatibility between English Common law not the MCA with Art 5 of the ECHR (right to liberty) as revealed by HL v UK.
Dols do not exist under the equivalent Scottish MCA but appear now to have been made the tail that wags the MCA dog, as the numbers of Dols applications soar to 0.5% of the population.
A Summary of the Law Commission’s Recommendations
5. A new system
DoLS should be replaced with Liberty Protection Safeguards. Liberty Protection Safeguards, authorisations should be in place in advance of any deprivation of liberty and should apply to those aged 16 and above and should be capable of applying in multiple settings.
So 16 to 18 year old in schools, care homes and their own home can now be made subject to huge control.
6. Authorising Liberty Protection Safeguards – Hospital trusts and CCGs should be responsible bodies as well as local authorities;
a capacity assessment, medical assessment and necessary and proportionate assessment should be completed before an Liberty Protection Safeguards assessment is authorised; authorisations are to apply for some people whose capacity fluctuates;
So the use of Dols is extended to those deemed to have ‘fluctuating’ capacity ie the epileptic, diabetic and those under the effects of medication. How does this fit with the MCA need to maximise capacity ?
and a responsible body ( LA/CCGs) should in some circumstances be able to rely on previous capacity and medical assessments.
This is in breach of MCA which states blanket capacity assessment can’t be made, as assessments must be time and decision specific.
7. Independence – Assessments should be independently reviewed and a new Approved Mental Capacity Practitioner role is to be created, and assessments should be referred to them
This new role is likely to be like AMHP a person will be registered and trained by LA and it is a role not a job so they are most likely to be social workers either agency or employed by LA or nurse practioners employed by NHS so anything but independent as LA/CCGs are outsourcers/commissioners for private hospital/care providers.
if there is an objection to the arrangements or in “harm to others” cases.
‘Harm to others’, is a MHA sectioning requirement not an MCA one, and, it is an additional one for sectioning, not an alternative one, suggesting MHA will be changed to an alternative requirement making it easier to MHA section.
8. Renewals – An authorisation should last for up to 12 months, after this a responsible body should be able to renew them for up to another 12 months and then for up to three years.
So the present yearly review of Dols is removed after 2 years.
9. Advocates and Appropriate Persons – An Independent Mental Capacity Advocate should be appointed unless a person does not consent or it is not in their best interests, or if the local authority determines there is an appropriate person to support and represent the individual.
So even an incapacitated’s right to consultation via an IMCA can now removed at the behest of the state.
10. Interaction with the Mental Health Act – Liberty Protection Safeguards should not apply to arrangements in hospital currently authorised by the Mental Health Act and the government should review mental health law in England and Wales with a view to introducing a single scheme to cover non-consensual care for the treatment of both physical and mental disorders when an individual lacks the capacity to consent.
This appears to suggest the incapable will be removed from MHA to MCA for all treatment.
Appears to signal the removal of the need for MHA section, if a person lacks capacity, allowing easier detainment in mental hospitals with no right to refer to a mental tribunal.
11. Wider Amendments to the Mental Capacity Act – Past and present wishes and feelings should be given greater weight as part of best interests decisions,
these are in any event required by the MCA, but who checks and enforces this has happened as courts will not interfere in service provision.
the statutory defence under Section 5 of the Mental Capacity Act should not be available for certain important decisions unless written records are kept, merely enforces documentary evidence not that the decision was reasonably required.
the Mental Capacity Act should be amended to allow emergency deprivations of liberty so liberty can be removed at any time and post factum justified
as long as a written record is provided afterwards and an individual should be able to bring civil proceeding against private care home and hospital providers if there has been an unlawful deprivation of liberty.
Who would have the locus standi to commence civil proceeding not the family only the service user and he has no capacity to litigate at best it could be through an Official Solicitor appointed by the state to sue the state.
Cause of action is practically non existent, as provided care providers/hospitals act reasonably on the balance of probabilities an action will not succeed.
And damages will be nominal, so what independent lawyer would take on such an action on a no win no fee basis and the loser would be ordered to pay huge corporate lawyers bills of both service provider and NHS/LA commission.?
This surely therefore can’t even amount to a sop to accountability.
Our Response
12. We thank the Law Commission for completing a comprehensive report into mental capacity and Deprivation of Liberty Safeguards and we have considered their recommendations carefully.
13. We agree in principle that the current DoLS system should be replaced as a matter of pressing urgency and we have set out our provisional stance regarding each specific recommendation below.
14. We will legislate on this issue in due course. However, before the introduction of any new system, we will need to consider carefully the detail of these proposals carefully and ensure that the design of the new system fits with the conditions of the sector, taking into account the future direction of health and social care.
It is clear from the following passage from the Government’s interim Mental Health Act Review the government intend to assimilate the MHA and MCA which is not good news as the later has been shown to be unworkable
It will be necessary very carefully to consider the interface between the MHA and the MCA more widely. Should MCA concepts of Powers of Attorney, Advance Decisions to Refuse Treatment, and court-appointed Deputies have a role in care governed by the MHA? Should we join up advocacy services provided by both pieces of legislation, possibly with other health advocates, to produce a unified and accredited service? Surely it should be possible to standardise the legal oversight between the Court of Protection and the Mental Health Review Tribunals so that at least issues of detention can be dealt with by the same tribunal. It may also be necessary to consider if and how their jurisdictions could be widened.
There are other areas in which we are also clear, even at this early stage, that change is
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