Dr Lucy Series, Cardiff University, Evidence to JCHR on MCA DoLS, March 2018

SeriesL@cardiff.ac.uk

Written evidence from Dr Lucy Series (DOL0068)

Evidence submitted by Dr Lucy Series, Lecturer in Law and Wellcome Research Fellow at the School of Law and Politics, Cardiff University.  My research is on mental capacity law (including its relationship to deprivation of liberty), adult social care law and the UN Convention on the Rights of Persons with Disabilities (CRPD). I am currently researching the history of the Mental Capacity Act 2005 (MCA) and the deprivation of liberty safeguards (DoLS), and have recently completed research for the Nuffield Foundation with colleagues at Cardiff University on the Court of Protection’s welfare jurisdiction.[1] My doctoral research examined the enforceability of the MCA through the DoLS, regulation, independent mental capacity advocates (IMCAs) and complaints procedures.[2]  I worked in a variety of roles in health and social care before becoming a legal academic.

My evidence will focus on two core questions: why are safeguards needed under the MCA? And what means should be available to a person and their family to challenge decisions made under the MCA that engage their fundamental human rights?  Although these questions may appear incidental to the JCHR’s inquiry, they go the core of what is at stake in the future of the DoLS.  Because this does not appear to fall within scope of the JCHR’s inquiry, I have not considered here the relationship between the MCA, the DoLS and the CRPD.

Safeguards under the Mental Capacity Act 2005

At face value, the MCA is a private law instrument that ‘merely’ makes decisions on behalf of a person that they cannot make for themselves. It is widely presented as ‘empowering’ for disabled people. Yet in practice in health and social care settings, the MCA hands a wide ranging de facto power[3] to professionals to make decisions about where a person lives, who they have contact with, whether they may establish or enjoy personal and sexual relationships with others, and to impose medical treatments on a person, even against their will.  Each of these potentially coercive uses of the MCA has parallels to public law powers found in the Mental Health Act 1983 (MHA) or the Children Act 1989. Yet because the MCA effects these interventions in the guise of a ‘general defence’[4] against liability for care and treatment without consent, it contains few of the substantive thresholds[5] or procedural safeguards one would expect.

For reasons that have been lost to history, the government chose not to introduce any of the procedural safeguards proposed by the Law Commission for serious medical treatment or adult protection.[6] The appellate courts have been reluctant to establish clear legal obligations to seek judicial authorisation for even the most serious decisions.[7] Instead, in response to pressure from campaigners, Independent Mental Capacity Advocates (IMCAs) were inserted into the statute for people who were ‘unbefriended’ for limited categories of care and treatment decisions.  IMCAs can play a valuable role where referrals are made, although referrals are in practice limited and patchy.  IMCAs were intended to help surmount access to justice barriers in challenging decisions under the MCA in the Court of Protection, yet our research indicates that outside of the DoLS IMCAs are almost never involved in making formal applications to court.[8]

Great reliance is placed in the MCA Code of Practice on other mechanisms to monitor and enforce the MCA. The Care Quality Commission (CQC), the Care and Social Services Inspectorate for Wales (CSSIW) and the Healthcare Inspectorate Wales (HIW) to some extent monitors the application of the MCA by health and social care providers, but this is focussed on procedures and documentation rather than reviewing individual decisions made under the MCA for individual people.  Someone wishing to challenge a particular decision made under the MCA could not invite the regulators to pursue a complaint or review an assessment or decision on their behalf.[9]  Complaints procedures are available for local authorities and NHS bodies, but a person is likely to need assistance in making a complaint, and complaints procedures lack the requisite independence to resolve serious disputes engaging fundamental human rights.  Although the Ombusman has received many complaints relating to the MCA and DoLS,[10] their involvement is likely to be too late for anything other than recommending an apology and compensation, and they have no clear powers to conduct assessments or make decisions under the MCA.

The DoLS need to be understood in this broader context.  The focus on Article 5 and the meaning of ‘deprivation of liberty’ is in many ways a distraction from the purpose that Article 5 has been invoked to serve: as a limit on the authority of health and social care professionals to make decisions under the MCA without independent oversight or realistic means of challenge.  The questions the Committee, and Parliament in due course, need to consider is in what circumstances procedural safeguards are necessary and appropriate for care and treatment decisions under the MCA, and what form should they take. 

Article 5 ECHR has many attractive ingredients: a requirement for clearly defined principles and procedures for making decisions, an element of independent review, and an accessible mechanism for people to challenge decisions made by health and social care professionals that have serious consequences for their lives.  As I will go on to explain below, outside the DoLS the MCA has little to offer in these terms.  The DoLS, and Cheshire West, are best understood as the fruits of a litigation strategy that sought to address growing anxieties about the lack of independent oversight and means of challenge for decisions with very serious consequences for people’s lives made by health and social care practitioners under the MCA.

To answer the question posed by the JCHR: no, Parliament cannot define ‘deprivation of liberty’ in the Article 5 sense because absent revision of the Human Rights Act 1998 itself the courts will always be able to reinterpret or reject such definition.  The ECHR is a ‘living instrument’ whose meaning is open to revision and amendment. 

However, Parliament can and should define the scope of appropriate procedural safeguards under the MCA.  There is no obvious reason why the scope of the safeguards must be framed in terms of ‘deprivation of liberty’– no such necessity is felt in relation to the MHA, for example.  All that is required of a statute is that it sets out where the safeguards may apply (and where they may not), what should trigger an application and what criteria must be met for an authorisation. 

The role of the Court of Protection

The MCA established the Court of Protection’s jurisdiction over health and welfare matters.  In theory, a person who objects to a decision made about them under the MCA, or a third party such as a friend or relative, may make a personal welfare application to the Court of Protection to challenge this decision.[11]  In practice, our research shows that this almost never happens.[12]  Applications to the Court of Protection’s welfare jurisdiction tend to be made by public bodies seeking authorisation for best interests decisions, not by people who are alleged to lack capacity (Ps) or their families seeking to challenge them.  Indeed, the Court of Protection application process and forms only anticipates applications from those seeking a best interests order; there is no obvious means to challenge an assessment that a person lacks mental capacity in the Court of Protection.[13]  Perhaps unsurprisingly in this context, our research indicates that applications through the Court of Protection’s main welfare route rarely result in a declaration that P has mental capacity.

There are many reasons why a person or their family may struggle to make an application to the Court of Protection to challenge a decision made (or proposed) under the MCA.  Evidence to the House of Lords suggests that many people have not heard of the MCA;[14] they are likely to be unaware of the role of the Court of Protection in challenging decisions. People and families reliant on local authorities and NHS bodies providing essential care and treatment may be reluctant to challenge their decisions in court for fear of souring the relationships they depend upon.  Litigation is daunting and stressful for most people, especially proceedings with the level of formality, complexity, emotional charge, and now publicity, that Court of Protection cases potentially have.

If a person chooses to litigate to challenge a decision under the MCA they may have difficulty securing specialist legal advice.  Where this can be secured, the cost of litigation will be prohibitive for many who do not satisfy the stringent means test for legal aid for personal welfare litigation.  The median cost of a legal aid certificate for a medical treatment case in the Court of Protection is £7,672, for a non-medical welfare matter it is £20,874, and the costs will be higher for those paying private client rates.[15]  Disputes about relationships, such as contact with family members or a person’s capacity to consent to sex, tend to last longer, involve more hearings and parties, and consequently will have higher cost.

In this context, the mechanism for ‘appealing’ against detention under the DoLS – s21A MCA – has become a vital lifeline for some people and their families to challenge care and treatment decisions made under the MCA.  Our research indicates that unlike personal welfare applications, s21A challenges are very often made by P, often with the help of an IMCA.[16]  The section 21A application process is designed to challenge decisions made under the DoLS.  Our research also shows that although some s21A applications are about where a person lives, many are about broader questions such as contact with others, the person’s capacity to consent to sex, or serious medical treatment. 

People detained under DoLS and their families have made use of the s21A court review available under the DoLS to overcome some of barriers to accessing the Court of Protection’s welfare jurisdiction.  Under the DoLS, but not the MCA, a person must be told about their right to apply to the Court of Protection to challenge a decision. A person will receive support from a representative and an IMCA who – at least in theory – should assist them in understanding and exercising their right to apply to court.  Applications under s21A attract non-means tested legal aid, unlike personal welfare applications.  In effect, the DoLS offer a back door route into the Court of Protection’s welfare jurisdiction for some people to challenge care and treatment decisions made under the MCA.  For those wishing to challenge serious medical treatment decisions, however, this route has been cut off by recent decisions of the Court of Appeal.[17] People wishing to challenge serious medical treatment decisions under the MCA will now have serious difficulties accessing the Court of Protection.

That is not to suggest that the DoLS provide an accessible mechanism to challenge deprivation of liberty in accordance with Article 5(4); merely to indicate that s21A is less inaccessible than other ways to challenge decisions made under the MCA in the Court of Protection.  There are no statistics on rates of appeals under the DoLS, but a best estimate puts the rate of appeal at fewer than 1% of people subject to a DoLS authorisation during 2017, and under 0.5% of DoLS applications overall.[18]  By comparison, the number of applications to the First Tier Tribunal (Mental Health) stands at around 47% of the overall number of detentions under the Mental Health Act 1983.[19]

The ‘special procedural safeguards’ required under Article 5(4) to help a detained person to exercise rights of appeal are inadequate under the DoLS, and are likely to remain inadequate under the Law Commission’s proposals.  They rely on complex and overlapping duties placed on representatives (often a person’s family), IMCAs and – as a last resort – the supervisory body to either assist P in applying to court or make an application themselves.  For family representatives, the step of applying to court will often be daunting and some may themselves support the detention.  We have no recent data on IMCA referrals under DoLS, but past figures suggest they are patchy at best.[20]  This would improve under the Law Commission’s proposals, but it is unclear how well resourced IMCAs would be or how long term their involvement to assist a person in appealing (assuming this part of their proposal survives).

Meanwhile the supervisory body has a conflict of interest: although many DoLS professionals will recognise and even welcome a court review, some will prefer to avoid judicial scrutiny of their decisions.  Whatever the outcome of the application, the costs of Court of Protection proceedings are prohibitive: based on information provided to us by local authorities we estimate the costs of a s21A case to be approximately £10,000 for local authorities, with some cases costing significantly more than this.  This is scarcely affordable in the current context of a serious funding crisis in adult social care.

The Law Commission’s proposals continue to place the primary responsibility on making an application on representatives and advocates who are likely to be poorly situated and resourced to assist a person in appealing.  An automatic court review, as exists under the MHA, will be disproportionate: it will involve people in litigation who have no wish to be, and automatic reviews will often miss critical windows for disputes to be resolved in a timely fashion.  A better approach, albeit still imperfect, would be for the ‘responsible body’ to be under a clear duty to refer cases for review when either P or P’s family object, or when care and treatment restrictions are particularly intrusive or invasive.[21]  P’s, relatives and advocates should retain a right to apply for a review as a fallback safeguard, but the primary duty to refer the case for review should fall on the body that is most involved in P’s care, better resourced, has the requisite legal knowledge and expertise, and which can be placed under a clear statutory duty by law.

The second problem is what form the review should take. The Law Commission leaves this open, raising the possibility of a tribunal. Tribunals are attractive because of the perceived accessibility for the person and their family.  They are also perceived as more efficient in terms of gathering evidence and incur lower costs in terms of expert reports, legal representation and the costs of counsel.  Our research also indicates that the present arrangements in the Court of Protection do not comply with human rights requirements to directly involve P in the proceedings.[22] In contrast the tribunal ‘goes to the person’ and the procedures are more flexible to accommodate participation.  The disadvantages of a tribunal are said to be that the kinds of issues addressed by the Court of Protection are too complex in terms of law and evidence, and that it would not be possible to hive off the question of ‘detention’ from to the wider issues address in s21A MCA reviews. Our research supports the latter concern – ‘detention’ cannot be considered in isolation of wider care and treatment issues, and is often linked to safeguarding concerns.  One option might be to radically reconstruct the Court of Protection’s entire welfare jurisdiction to address concerns about accessibility, efficiency and participation, borrowing where appropriate from the approach taken by the tribunals.

The government and Parliament need to address the question of what form a court or tribunal review should take.  This will have significant implications for the operation of the MCA and the successor to DoLS in human rights terms and in terms of cost.  The Law Commission estimated that if the DoLS operated as they should, the legal costs alone would be in excess of £1bn per year.[23]  This is simply unsustainable. We cannot tackle the serious human rights issues presented by the MCA and the DoLS without simultaneously tackling the role and function of the Court of Protection.

2 March 2018