The advocacy providers: 5th Evidence Session of the Select Committee on the Mental Capacity Act 2005

It’s hard to keep up in legal capacity land these days, what with the Irish Bill being published, this rather marvellous report on legal capacity from the European Union Agency for Fundamental Rights and Munby’s transparency drive. But, still, better late than never. Last week the Select Committee on the Mental Capacity Act 2005 (MCA) heard evidence from advocacy providers, including Steve Gray (from Asist), Elyzabeth Hawkes (from PohWER) and Jonathan Senker (from VoiceAbility). The session primarily focussed on a form of statutory advocacy created by the MCA – Independent Mental Capacity Advocates (IMCAs). The Chairperson was Lord Hardie.

This evidence session did prompt a little twitter rant on my part in relation to the role of IMCAs in accessing the Court of Protection under the deprivation of liberty safeguards (DoLS). The gist of it – as I’ve written about before – is that I am concerned that not all IMCA providers appreciate that it is their job to help people exercise their rights of appeal against detention.  Nothing under the MCA or Article 5(4) ECHR says that people only have appeal rights where it’s in their best interests – and there are a welter of cases about legal capacity which point to the contrary (Shtukaturov, Stanev, DD, Kedzior, Sykora, Lashin and more...). Moreover, there are also ECHR authorities which say that a person’s rights of appeal against detention don’t rest on their case having merits, and there are cases which say that a person’s access to effective remedies in matters like appeals against detention and declarations of incapacity absolutely should not be resting on the individual judgment and discretion of public officials…  In the context of detention under s2 Mental Health Act 1983 - which has no automatic referral mechanism to the Tribunal - Lady Hale noted that the right to bring an appeal against detention under Article 5(4) must be 'practical and effective', meaning that 'every sensible effort should be made to enable the patient to exercise that right if there is reason to think that she would wish to do so'.  I can think of no sensible reason to distinguish the DoLS from this general proclamation, especially since the case was about a person who 'lacked capacity'.  If IMCAs aren't the ones who are supposed to make every sensible effort to help a person exercise their appeal rights, then who on Earth is?  The detaining authorities?  Should it just be left up to families to rock the boat?

Perhaps I’m being unfair, but comments to the effect that it’s a shame the DoLS don’t have an independent element like the Tribunal under the Mental Health Act 1983 had me holding my head in my hands and shouting ‘There IS an independent element. It is called the Court of Protection. And YOU are meant to help people to get there!! Read s39D(8) MCA!!’ Part of the difficulty, I suspect, is the the language of the statute under s39D around when an IMCA must help a person to challenge their detention is somewhat diluted in the DoLS Code of Practice, which merely comments that they may.  Meanwhile the duty to refer to an IMCA under s39D has been interpreted by the code in terms of when a person requests one - not when it appears to a supervisory body that without the help of an IMCA that person would be unable to exercise their rights of appeal and review.  Which - given the difficulty most people would have in understanding their rights under the DOLS and navigating the appeal appeal mechanism - must be most people.  That, I suspect, is why we still see local authorities with many DOLS authorisations (sometimes over 100) and yet not a single referral under s39D MCA.

4th Evidence Session of the Committee on the Mental Capacity Act

Somewhat belatedly, here is a digest of the fourth evidence session of the House of Lords Select Committee on the Mental Capacity Act.  I have put all my posts about the background to the Committee, and the previous evidence sessions, under this label if you want to read more.  On Tuesday 16th July the Committee heard evidence from disability charities (transcript here), including:

• Vanda Ridley, Communications Manager at the Down’s Syndrome Association;
• Beverley Dawkins OBE, National Officer for Profound and Multiple Learning Disabilities at Mencap;
• Hannah Barnett, Head of Operations at the National Autistic Society;
• George McNamara, Head of Policy and Public Affairs at the Alzheimer’s Society;
• Peter McCabe, Chief Executive of Headway;
• Paul Farmer, Chief Executive Officer of Mind.

This session was chaired by Baroness Browning as Lord Hardie was unable to attend.  As usual, here are some comments from the session organised by topic...

The Assisted Decision-Making (Capacity) Bill in Ireland - a bit of a mixed bag

Readers from the Republic of Ireland will almost certainly know that the Oireachtas has now published the long-awaited (and newly titled) Assisted Decision-Making and Capacity Bill. This is a very exciting development, not just for Ireland but for states around the world who are grappling with the implications of the UN Convention on the Rights of Persons with Disabilities (CRPD) for legal capacity matters. Ireland has been operating with a 19th century ward of court system in relation to legal capacity (amongst other statutory and common law provisions), and had committed itself to reforming this system before it ratified the UN CRPD. Onlookers (like myself) watched with interest as constructing legal capacity legislation which complies with the CRPD is no mean feat - it is doubtful that any state has managed it and many states (such as the UK and Australia) are actively contemplating its implications.

Under the CRPD, legal capacity is primarily governed by Article 12 on equal recognition before the law. The drafting of this article was very controversial, and it retained a degree of ambiguity as to whether or not it permitted what are called, in the parlance of the CRPD, ‘substituted decisions’. Substituted decisions are decisions made by a third party on behalf of another on the grounds that they ‘lack capacity’. Although the text of the Article is ambiguous, however, its interpretation by the UN Committee for the Rights of Persons with Disabilities has not been – they have repeatedly stated that regimes of substituted decision making must be replaced by regimes of ‘supported decision making’. I have gathered together the various comments of the CRPD Committee relating to legal capacity in this document if you would like to see for yourself what they are saying. There are also implications for this Bill from Article 13 (access to justice), Article 14 (liberty), Article 15 (on torture, but especially in relation to non-consensual medical experimentation), Article 17 (bodily integrity) and Article 19 (independent living – specifically the right to choose one’s living arrangements). Article 16 CRPD is also relevant as it relates to protection, and historically deprivation of legal capacity and guardianship regimes have been thought of as protective regimes (see, e.g. the Hague Convention on the International Protection of Adults).  The CRPD challenges us to think about protection in a very different way, although (frustratingly) I can find very little (published) work being done on this at present.

What constitutes news?

I am completely befuddled by what constitutes news.  John Hemming MP drafts an Early Day Motion calling for some random inquiry for Parliament to review urgent applications in the Court of Protection.  That's news, according to the Daily Mail and the Independent.  Parliament actually sets up a dedicated Committee to examine the functioning of the Mental Capacity Act - covering various issues around human rights, the Court of Protection and even hears evidence on urgent applications.  That is not news (or at least, it is not news that I have been able to locate anywhere except the ever-trustworthy Community Care).

Not a month passes, it seems, without a newspaper headline proclaiming 'secrecy' in the Court of Protection or the Family Courts.  Sir James Munby - the new President of the Family Division and the Court of Protection - announces the first in what looks set to be a whole series of major transparency reforms.  Is that news? Apparently not.

One step closer to Open Justice

It's a while since we've had an Open Justice post...  but we knew it couldn't be long with Munby LJ being appointed the new President of the Family Division and the Court of Protection.  As readers will know, there are various issues around transparency in the Court of Protection as a result of s12 Administration of Justice Act 1960, which renders is a contempt of court to publish information about proceedings held in private.  Under the Court of Protection Rules 2007, the judge can choose to hear a case in public, or authorise publication of information about proceedings held in private, which they have done on various occasions.  However, this is contingent upon somebody (typically the media) making an application for them to do so, or a judge exercising his or her discretion to authorise publication of the judgment on BAILII or MHLO (or Family Law Week - who knows where they'll pop up next! I wonder whether there is any rhyme or reason for where these judgments end up?).  So, the judgments that end up in the public domain are not necessarily representative of the typical work of the Court of Protection, and (as I've written about before) you can even end up with the indefensible situation of lawyers being able to cite cases in court which aren't even in the public domain...

Anyway, readers who've read Munby LJ's own' commentaries on transparency (like this one) in the Family Division and the Court of Protection were probably anticipating changes.  Upon appointment he stated:

LB

When I first read about the death of Sara’s son, LB (‘Laughing Boy’), last Thursday, I was lost for words.  I had been following Sara’s blog for over a year now, enjoying her delightful anecdotes about LB - his humour, his achievements, his uniqueness and also her clear love and pride in her son. Part of the reason the blog was so readable was because they are a family you wanted to know, to hang out with, to hear LB’s jokes and about their projects. Sara wrote about LB as an unlikely ethnographer, LB defying the expectations of the ‘deficit focused’ medical profession, his love of buses and lorries.  She wrote:

‘Some people suggest that LB (17) has various labels like autism, learning disabilities and Klinefelter syndrome. I just think he is one crazy dude who loves Eddie Stobart, drum and base and going to London.’

This blog – like Mark Neary’s – was the antithesis of the kinds of ‘autism as tragedy’ narratives the activist Jim Sinclair was targeting in his famous address to an Autism Conference in 1993 (‘Don’t Mourn for Us’).  It was a celebration.

Winterbourne View, scrutiny and recommendations for reform: Third evidence session of the Committee on the Mental Capacity Act

The House of Lords Select Committee on the Mental Capacity Act 2005 (MCA) has posted a transcript of its third evidence session.  The Committee hear evidence from Toby Williamson, of the Mental Health Foundation, who was chair of the Making Decisions Alliance from 2004, an alliance of national and regional charities ‘that worked with different groups of people with disabilities’ and campaigned for the MCA to be passed in parliament.  Williamson also spoke from the perspective as a co-author on a major study of best interests decisions (the ‘BIDS’ study), conducted by the Mental Health Foundation, the Norah Fry Research Centre at Bristol University and the University of Bradford.  They also hear evidence from Sue Brown, who is head of public policy for the charity Sense, which works with deaf-blind people, and who was a former member of the Making Decisions Alliance.  After hearing evidence about the passage of the bill, and the satisfaction (or otherwise) of those who were involved in campaigning for it with its implementation, the Committee heard evidence from the authors of two major reports on serious welfare and abuse issues.  Margaret Flynn gave evidence on the MCA from her perspective as author of the Serious Case Review into the abuse of adults with learning disabilities at Winterbourne View hospital, and Pauline Heslop from the Norah Fry Research Centre at the University of Bristol spoke from her perspective as an author of the Confidential Inquiry into premature deaths of people with learning disabilities (CIPOLD) report.

Parliamentary privilege and the Mental Capacity Act Committee

Just a quick update to say that I heard back from the House of Lords Committee on the Mental Capacity Act 2005, who confirmed what others had said to me - that it is not a contempt of court to submit evidence to the Committee about proceedings in the Court of Protection.  I contacted the Committee to ask about this because ordinarily disclosing information about proceedings in the Court of Protection which are held in private is a contempt of court (see s12 Administration of Justice Act 1960), and this prohibition has been very broadly interpreted (In the Matter of B (A Child) [2004] EWHC 411 (Fam)).  As Wanda Maddocks could tell you, it is also enforced.

Happily, evidence submitted to the House of Lords Select Committee is protected by an old constitutional guarantee of Parliamentary Privilege, which the clerk of the Committee kindly explained in her email and said I could reproduce here for you to read:

Witnesses’ remarks made in solicited written or oral evidence to select committees are protected by parliamentary privilege. This means that witnesses cannot be prosecuted for what they say in written or oral evidence to a committee; and evidence to a committee could not be used in court to support a prosecution or civil suit. However, it is worth noting that it is only in the context of parliamentary proceedings that the evidence is protected. Parliamentary privilege does not protect a witness if they repeat their evidence outside Parliament.

Given the sensitivities of the circumstances, the Committee will wish to consider how, if at all, to publish the evidence received. That will depend in part on the nature of what is submitted.
In addition, if the Committee decided on the basis of a written submission to call an individual for oral evidence, we would expect that session to take place in private. The Committee would need to consider what record, if any, would be taken of the session.

So, if you have stories about experiences of proceedings in the Court of Protection that you would like to share with the Committee, you can submit written evidence to them.  Don't forget though, this protection doesn't apply if you publish or disclose this information to anybody else.  Even once you've written to the Committee, it could still be a contempt to tell other people or the media about the proceedings, or stick your evidence on your blog or whatever.  Just to repeat that: just because you are protected when telling the Committee, doesn't mean you are protected telling anybody else.  Furthermore, the Committee may choose to redact your evidence, or not to publish it at all, as Parliamentary Privilege must be exercised responsibly.  Please remember (if you are reading this in the future)*, when the Equality and Human Rights Commission open their inquiry into the deprivation of liberty safeguards, this privilege will not apply.

Just a reminder - here is the call for evidence.

*I mean, obviously you are, but the distant future when the EHRC inquiry opens...