The British House of Lords has appointed a Select Committee to review the workings of the Mental Capacity Act. (The consultation process can be viewed on-line.) I have submitted written evidence, on the basis of my forty years of practice as a social worker for local authorities.
I believe that the MCA is a good Act. But in my submission to the Select Committee, I have given it as my opinion that the MCA is still bedding in. Staff need training and updates on case law (especially as regards the DoL Safeguards). Indeed, the DoLS procedures need amendment – simplification, in fact. MCA Schedules A1 and 1A are very complicated and hard to follow. Schedule 1A in particular is so opaque that it should be re-drafted, to make it more comprehensible.
The referral criteria to Independent Mental Capacity Advocate services may be too tight. I am inclined to think that patients should have access to advocacy, (a) whenever their care plan is being reviewed, not only when a major decision is being made, and (b) even if a relative or friend is involved as the Representative, Donee or Deputy (cf the provisions of the MCA). IMCAs develop expertise through training and practice.
The relationship between the MCA and the Mental Health Act remains confusing. Case law has thrown some light on it: roughly speaking, the MHA “trumps” the MCA, so long as its use is lawful.
Training for Best Interests Assessors in Wales is neither prescribed nor compulsory. The Welsh Government should be urged to address this and raise the standard. Moreover, Best Interest Assessors should be rewarded, financially, for the additional work they take on.
My main concern, therefore, is about the DoLS and the interface with the Mental Health Act in general and MHA Guardianship in particular. Both Acts need to be considered – together.
A patient (I use the word ‘patient’ for convenience) who is:
(a) mentally incapable
(b) in need of psychiatric treatment in hospital
(c) deprived of his/her liberty
should be subject to the Mental Health Act rather than the DoLS procedures – even if he/she is compliant. The MHA confers on the patient more rights – better safeguards and more reviews. Guidance on this matter should be issued – in law and/or regulations and or a revised code of practice. (Note that, although compliant patients are generally dealt with “informally”, in terms of the MHA, nothing in the MHA prevents their detention, in principle.)
Similarly, a patient who is:
(a) mentally incapable
(b) in need of a care plan but not hospital admission
(c) deprived of his/her liberty
should be subject to MHA Guardianship rather than the DoLS procedures. The law should explicitly allow this. (See below).
As I have already indicated, MHA Guardianship provides more safeguards than the DoLS: for example, it provides for more reviews, by those involved in the care, the hospital managers and the Mental Health Review Tribunal. Guardianship is appropriate when an impairment of capacity and periods of non-compliance have continued, and are likely to continue, for years. Moreover, Guardianship has an inbuilt flexibility: it can be converted to a MHA section 3 admission, under section 19 of the MHA.
Practical drawbacks of the present laws
Guardianship does not provide explicit authority for the guardian to detain the patient – in other words, to deprive the patient of his/her liberty. In his MHA Manual, Professor Richard Jones argues that it provides implicit authority. I believe that this opinion has not been tested in any court hearing. The authority should be made explicit in law – or else it should be excluded, specifically.
The power to move a patient from place to place (eg from their home to a hospital or to a care home), if they are subject to the DoLS, should be made explicit in law.
I now move on to discuss three cases. Two of these I was involved in myself; one (the first mentioned) influenced the practice of social workers and other practitioners while consideration of it went up from court to court. I think that they throw up interesting, relevant scenarios.
The Bournewood case
The facts are well known to practitioners in the field. The patient was mentally incapable and compliant (not expressing dissent). What could have happened was that the care team considered detention under the Mental Health Act. One of the patient’s informal carers would have been the Nearest Relative, in accordance with section 26 of the MHA – they would have been consulted; they would have refused to go along with the care team’s plan, as they wanted the patient to be discharged to their care; the status of the patient would have remained “informal”; an Approved Social Worker could have applied to the County Court to override the views of the Nearest Relative (or at least to test the strength of the case); the Court would have heard the evidence and come to a decision. The demands of the European Convention on Human Rights would have been met, as (a) a process laid down in law would have been followed, and (b) an independent review would have taken place.
England and Wales would not have ended up with the complexities of the DoLS, as they stand now, if this option had been explored or if it had been recommended subsequently, in law and in policy directions. If, as I have argued above, the MHA procedures now came to be preferred to those of the DoLS, the use of the latter would be lessened: they would be confined, more or less, to the protection of patients who are:
(a) mentally incapable
(b) in need of physical treatment (generally, in hospital)
(c) deprived of their liberty.
In my view, this would be a progressive move.
A mother and son
This case came to my attention twenty or more years ago. I should add that in those days, practitioners had no experience of applying to a court for “declaratory relief” for their actions, when care, rather than treatment, was at stake. Practitioners were more familiar with MHA Guardianship.
The mother had cared for her adult son (who had Downs Syndrome) for many years, singlehandedly. When she felt that she could no longer care for him, she decided that he should not be left in the care of anyone else. She then tried to kill her son, by poisoning him, but he survived. The eventual outcome was that the son was placed in a local authority residential home and made subject to MHA Guardianship. The defence of the care team to any objection would have been that we were acting in the best interests of the son, especially as he was at risk from his mother.
The criteria for Guardianship were, I admit, stretched somewhat, given that a patient with a learning disability can only be made subject to a Guardianship application if the disability is “associated with abnormally aggressive or seriously irresponsible conduct” (section 1 of the MHA). (The care team invoked “irresponsible conduct”.) This exclusion is appropriate for section 3 but, I would strongly argue, not for section 7 (Guardianship), which is less restrictive. The law should be changed, to allow for the protection of Vulnerable Adults in similar circumstances.
A patient, discharged from hospital and placed in a care home
This case came to my attention in 2009. The patient in question had had many admissions – sometimes under section 3 of the MHA – to the local hospital. On her latest discharge from hospital, the patient was placed in a care home by her local authority. The regime of the home imposed restrictions upon the residents. (Did these restrictions amount to a deprivation of liberty?) The home is situated, not in the patient’s home area, but in the neighbouring area, where I was working as a Best Interests Assessor. The local authority for the area where the patient had lived for years was going to dispose of her home. Hence, unless she stayed in the care home, she would be rendered homeless.
The Managing Authority, for the purposes of the DoLS, referred the case of this patient to my local authority, as the Supervisory Body, and I was assigned to the case. In the course of my enquiries, I consulted the relevant social worker in the neighbouring authority: she stated that she would take responsibility for her share of the DoLS process, in response to this referral; she added that at the expiration of the authority to detain, she would pass responsibility for continued detention to my local authority.
I objected to this transfer of management, as it appeared to me to be an abdication of responsibility, especially given the long term involvement of the neighbouring local authority with the patient. I proposed that MHA Guardianship would be appropriate, especially as, if the patient relapsed, she could be transferred to hospital fairly smoothly (in accordance with the MHA). My colleague argued that the patient could not be deprived of her liberty, under Guardianship: she was relying on the advice given in the MCA and DoLS Codes of Practice. I reminded her that, in his MCA Manual, Professor Richard Jones expressed disagreement with this advice; I tended to agree with Professor Jones; my colleague accepted the advice given in the Codes and stuck to her opinion. In conclusion: the law needs to be clarified: the MHA should be amended, to allow this, explicitly. Then, the guidance on the DoLS could be altered, to reflect this change.
I await the conclusion of the Select Committee’s deliberations with interest.
David R Harries