MCA Committee - first evidence session

The House of Lords Select Committee on the Mental Capacity Act has published the transcript of its first evidence session, heard last Tuesday 18th June.  This opening session heard from government officials, including John Hall (Deputy Director of Family Justice), Nick Goodwin (Deputy Director of Court Tribunal Fees), Anne-Marie Hamilton (Director of the Social Care Quality and Safety Branch, Department of Health) and Claire Crawley (Senior Policy Manager, Adult Safeguarding, DoH).   The evidence is pretty long (43 pages) and full of interesting discussions - ranging from the Mental Capacity Act (MCA) and the deprivation of liberty safeguards (DOLS) to much broader issues like the conditions care staff work in, the support available to family carers, the role of the Care Quality Commission (CQC) and more.  There were a few bits of the evidence session that were of particular interest to me, but it is well worth reading the entire thing if you're an MCA or obsessive.  Overall, I think the Committee asked some pretty good questions, and there was some pretty persistant probing of officials by some members - it will be interesting to see how these issues get taken up in later evidence sessions.

[Edit 27/06/2013: The second evidence session has just been published, with evidence from Richard Jones, Kirsty Keywood, Nicola Mackintosh and Katie Johnston. It's fiery stuff - well worth a read.  I don't have time to write about it today... maybe on my flight home tomorrow!]



Is the MCA a success?

The Committee opened the questions by asking whether the MCA had been a 'success'.  All the officials responded that they felt it had, that the Act was 'progressive', that it had been broadly welcomed.  This certainly reflects the view that is usually trotted out in the social work and medical literature on the MCA - that it is 'empowering', 'progressive', 'enshrines rights to autonomy', etc etc - it's not a view that I share, but let's not get sidetracked...  However, the Officials all agreed that there had been problems with the implementation of the Act, that the 'culture change' it required had not always come to pass:

'we all acknowledge that understanding is not something that happens overnight, ditto culture change.... My assessment would be yes [the MCA has been a success], overall, but there is still some progress to be made on understanding and culture change.' (Nick Goodwin)

'I know this is a difficult question, but do you think those statutory principles are being embedded in practice in culture?' (Baroness Andrews)

'I think they are in some places... 'It is a huge culture change. Traditionally, social care and the health service have been a bit paternalistic in their attitudes towards patients and people using services. There is a huge thrust much more towards choice, control and self-determination. Front-line staff, such as care assistants and healthcare assistants, who are largely untrained and unqualified, probably need more assistance to understand the concept the Act is about. Perhaps particularly health professionals find the concept challenging. Social work traditionally has been about empowerment, change, choice and control, but clinicians sometimes find it difficult to feel that they cannot make a decision unencumbered by the patient’s view—but that is a terribly sweeping statement. We are getting there, but you are right: it is a fundamental change because it is a way of practising within human rights essentially, and it has got to be at the forefront of everything you do and all your practice.' (Claire Crawley)

The Committee then asked how officials knew how effectively the MCA was being implemented.  This was a line of inquiry that recurred throughout the evidence session, and I'm glad the Committee are hot on this because one of the key issues with the Act is the lack of oversight of its core mechanisms.  The Officials cited some metrics to back up the idea that the MCA was being implemented increasingly effectively.  One was the growing use of Lastin Powers of Attorney (LPA) - which certainly is positive, although the little research I did on this for my PhD suggests that they are only really being used by older adults, and not by younger people with developmental or acquired disabilities who might prefer to nominate a particular person to represent them rather than having decisions made by others.  This contrasts with systems in other countries, which I've touched upon before.  Another question the Committee posed was how many LPAs are actually being used - as opposed to registered?  I've asked this under the Freedom of Information Act 2000 before, and was pleased that the Committee got the same response as me: that data isn't collected.  We actually don't know how many LPAs are being used.  The officials also cited the growing use of the deprivation of liberty safeguards (DOLS) and Independent Mental Capacity Advocates (IMCAs) as evidence of successful implementation.  I think this is a bit weaselly really - the use of both DOLS and IMCAs has been underwhelming in contrast with expectations, and still is.  The use of DOLS actually began to fall in the last quarter for which records were published, coincidentally the quarter after the ruling in Cheshire was published.  And, as the Committee went on to discuss, the use of both DOLS and IMCAs is extremely variable, suggesting a postcode lottery in protection (statistics available here).

One interesting line of inquiry pursued by Baroness Andrews and, later on, by Baroness McIntosh, was to ask officials what action had been taken regarding the problems with implementation of the MCA, given the evidence that there were serious problems.  The Committee cited Winterbourne View, reports like Death by Indifference (see also the CIPOLD report, 2013, one of whose authors gave evidence to the Committee yesterday) and the problems with IMCA and DOLS uptake. Baroness Browning asked 'When you see something that I would describe as a trigger, who exactly in the Department of Health has responsibility for deciding that, yes, your department needs to do something about it?', to which Claire Crawley replied, 'I think ultimately it is probably Ministers.'  This question, in various forms, recurred throughout the evidence session, with officials being asked why - in the context of high profile failings of the Act, or high profile reports highlighting serious concerns - the government had not taken action to review the MCA of its own volition.

It is important to reflect on what violations of the MCA signify in domestic law.  In a medical context they may constitute torts of trespass, elsewhere they may represent violations of people's ECHR rights - including rights to private, home and and family life, rights to a fair trial, rights to enjoyment of property, rights to life, marriage, the right to liberty, and so on.  These are serious, serious, matters.  The MCA hands tremendous power to health and social care practitioners (even if in the form of a defence, rather than formal power), power over life and death, over love and relationships, over the most intimate and important matters in people's lives.  I worry that sometimes those who are familiar with the system become almost oblivious to this as it seems so natural and normal to them.  Here is an important question: if non-compliance with the MCA and the DOLS is reasonably widespread, why are the courts not clogged up with litigation for trespass and human rights violations?  What does that say about the accessibility of individual redress mechanisms for the population affected by the MCA?  And what does that, in turn, say about how 'empowering' it is?  What kind of empowerment is this, if that empowerment is in the gift of professionals with little recourse for those affected if they do not comply?

Is the MCA compatible with the UN Convention on the Rights of Persons with Disabilities?

The million dollar question.  One that I hoped the MCA Committee would look into, and I was not disappointed.  The exchange was quite brief - but the results were interesting.  It appears that the senior judiciary have raised this concern with the government, and they are undertaking their own review - which should be completed by the end of the year.  I look forward to reading that!

Q5 The Chairman: The United Nations convention on the Rights of Persons with Disabilities entered into force in May 2008, subsequent to the enactment of the Mental Capacity Act, and was ratified by the United Kingdom in June 2009. Have you considered whether the Act complies with the convention? What was the outcome of that consideration?

John Hall: We took legal advice at the time that the convention was made. The legal advice was that the Act was compliant. We understand that since then some concerns have been raised among some of the senior judiciary, and we have started discussions with them. To be doubly sure, we are doing a review this year to get further advice on that, but our view is that it is compliant.

The Chairman: You are carrying that out this year.

John Hall: That is right. TheChairman: When do you expect that to be completed? 

John Hall: By the end of the year.

The Chairman: Does that include addressing the suggestions from some quarters that the substituted decision-making is not compatible with Article 12? 

John Hall: That is the nub of the review.

The challenge to the MCA posed by the CRPD is so deep, so radical, that it is almost impossible to discuss these issues at the same time as discussing issues like compliance and procedural safeguards under the MCA.  The Committee almost needs to conduct two inquiries in parallel - one looking at the MCA through the lens of relatively conservative and well developed human rights standards like procedural justice and safeguards (ie. ECHR Articles 6 and 8), and a separate focus on the challenge(s) posed by Article 12 CRPD (and Articles 14, 17 and 19).  There will be some overlap, inevitably, but the issues are really quite distinct.

Deprivation of liberty safeguards

The DOLS were discussed in several places by the Committee.  Lord Patel asked whether the DOLS had a 'very different and less empowering ethos' than the MCA.  Crawley responded that this was not the government's view:

I think they are empowering. Partly it is the way they are misinterpreted or misunderstood. The language does not help. People concentrate on saying "deprivation of liberty” when what they should be concentrating on is the word “safeguards". These are about making sure that people who in their best interest have some restrictions on their liberty—minimal restrictions—to keep them safe have adequate recourse and protection within the law and within the system. I very much see them as empowering because we see a range of people whose treatment is being challenged, including through the Supreme Court and the Court of Protection work. No, I do not accept that. I accept that the very terminology might feel confusing and inappropriate, but the ethos is to allow people to make as many decisions as they can and to be as free as they can.

I have to say, I agree with this analysis.  I think there is often a fundamental misunderstanding - in the media and elsewhere - about DOLS.  DOLS are not used to do anything new to people that was not already being done under the MCA and - before that - without any formal legal authority whatsoever.  Before DOLS Peggy Ross would no doubt have been stopped from going on her holiday and Steven Neary would have been prevented from going home - the difference is that DOLS gave them some (crappy) safeguards to hold to account those who exercised authority (de facto or otherwise) over them.  The reality is that the safeguards are so weak and so flawed that next to nobody can actually use them to hold authority to account, but still, the purpose of the safeguards is less about locking people up, more about helping people who were already being locked up to get out.  A rise in the use of DOLS very likely does not signify increasing numbers of detentions, but rising numbers of people (potentially) gaining access to the tools to challenge their detention.

The question of massive regional variations in the use of DOLS was raised.  I have discussed this before  and shown that the variations could not be explained by population size alone, but officials tried to pin this on variations in population characteristics:

It is probably inevitable that there will be regional variations because the population make-up differs across the country. Some areas have higher populations of older people, some areas have more hospitals and more care homes and some care homes have higher populations of people with dementia.

It is true that there will be regional variations in age and care home concentrations - the data is there if people want to try to correlate this with the DOLS statistics (perhaps CQC could do that for their next DOLS report?).  However, I seriously doubt this is a valid explanation - some of the largest variations happen in local authorities which are neighbours and have very similar characteristics, and there are some large local authorities without barely a single application under DOLS - yet surely there is at least one person in those areas who at least could be deprived of their liberty (whatever that means, these days)?  

One area that made me laugh out loud was the evidence of officials on the relationship between the MCA and the Mental Health Act (MHA).  This is notorious amongst lawyers as one of the worst areas of drafting of the MCA/DOLS, and has produced some of the most tortuous judgments (GJ v Foundation Trust, 2009) and tangled situations where it is quite impossible to know what the law does actually require (e.g. C v Blackburn with Darwen).  Horrible, horrible questions about this come up every time I teach on the MCA or the DOLS.  Lord Patel asked about how well the relationship between the MCA and the MHA was understood, to which Anne-Marie Hamilton replied (my emphasis):

The relationship between the Mental Health Act and the Mental Capacity Act is clear in law, but I think you are right that in practice it is not always understood by professionals using it. There are probably particular issues around people detained under the Mental Health Act and whether or not the Mental Capacity Act could be used in those circumstances. Professionals understand and are aware of both, but probably in reality there is confusion about how the two are used in practice. That may reflect the fact that the Mental Health Act has obviously been in existence for considerably longer than the Mental Capacity Act, so it may be a question of time and experience and practice, as people get more familiar with both pieces of legislation. 

Claire Crawley also responded 'I do not think there is confusion in the law, but people do not always understand which legislation they should be operating'.  So, imagine my amusement when in response to a question about Winterbourne View, Crawley responded:

It is difficult to use Winterbourne View as an example, because so much was wrong at Winterbourne View, but clearly there were people there who should have been treated under the Mental Capacity Act and were not. They were detained under the Mental Health Act—if they were detained at all, actually, because I have sense that some were probably illegally detained, because they were neither detained under the Mental Health Act or the Mental Capacity Act.

Oh dear, bottom of the class!  People in Winterbourne View (a hospital), who were detained, were there for the purposes of treatment for mental disorder, who were objecting (on a broad reading of what constitutes objections), would not be eligible for the DOLS and the MHA should have been used.  The MHA would, in theory, have given them more robust safeguards - although we know from the Serious Case Review that doctors were signing the paperwork without an AMHP's approval,  that nearest relatives appear not to have been aware of their rights, and nobody appears to have been discharged by a Tribunal...  Anyway, I digress, my point is that it speaks volumes for the issues around the MCA/MHA interface when, in the same breath as arguing that the law is simple, the officials get the law wrong.  There is some research forthcoming on understandings of the MCA/MHA interface, and it will be interesting to see what that finds.

The Court of Protection

There were a few questions about the Court of Protection as well, but to be honest nothing that was especially deep or profound.  Perhaps that will come when legal practitioners give evidence.  There was an acknowledgment of teething problems by John Hall, and legal aid changes were briefly touched upon.  The question of transparency and openness in the Court of Protection was raised, with Lord Faulks asking about the Maddocks case.   John Hall, from the Ministry of Justice, refused to comment on individual sentencing decisions, and referred to the pending review of transparency issues in the Family Division.  Hall also said that Maddocks was the only case of imprisonment in the Court of Protection, which is actually not quite correct (note that that case doesn't appear to comply with the recent Committal proceedings guidance on transparency).  But that was pretty much it really.

Which is a shame, as there are loads of important human rights issues around proceedings in the Court of Protection which the Committee should be considering - questions around access to justice for people to challenge capacity assessments and best interests decisions which affect them, the role of litigation friends, how far P should be enabled to participate in proceedings (and how far the Court of Protection complies with the 'rule of personal presence' being delineated in cases like Lashin v Russia), I hate to cite Hemming but the issue of without notice proceedings has been raised as a concern by judges (here and here).  And - of course - there are wider transparency issues - I don't mean whether the Daily Mail gets to splash stories about the Court on the front page, I mean whether people can talk to friends, family, doctors and counsellors, their MP (not all MPs are John Hemming) about proceedings in the Court of Protection.  There are also interesting questions about the rights of people who are alleged to lack capacity to waive the 'protection' of privacy.  I think there are questions raised by the Maddocks case; not conclusive evidence of anything dodgy going on, but I would want to know how a court weighed a person's Article 6 rights when making an order prohibiting them from seeing a solicitor (and, according to the judgment, potentially putting a solicitor who took instruction from that person in contempt of court).  ECHR jurisprudence around legal capacity and court proceedings (not to mention the CRPD!) has developed rapidly since the Court of Protection was established, and it would be useful to reconsider Court procedures in light of this.

Well, that's all for now... lunchbreak over and back to work!  But I'm looking forward to seeing the evidence from later sessions.