HoLMCA: What the Recommendations mean for my clients

Posted on: March 14th, 2014 by Jess Flanagan

The House of Lords Select Committee on the Mental Capacity Act 2005 published its eagerly anticipated report on 13 March 2014. I cannot profess to having read the report in it’s entirety yet, but having considered the recommendations am extremely hopeful that, if adopted, the Act will go from strength to strength.

The Lords begin by endorsing the aspirations behind the Mental Capacity Act (the Act) and quickly identify in the second paragraph that “The Act has suffered from a lack of awareness and a lack of understanding.” As a solicitor specialising in litigation in the Court of Protection (and am obviously mainly involved because things go wrong), time and time again I see individuals being assessed as lacking mental capacity because they want to make a decision that someone else (their assessor of capacity) sees as unwise. Far from empowering individuals to make their own decisions, the Lords have seen evidence that health and social care persist in being paternalistic and risk-averse. I blog relatively frequently on my anger towards examples demonstrating use of these models of social care and express joy when reading Court of Protection judgments that right the wrongs seen in practice.

Sadly, for some, waiting for the judge to ‘right the wrong’ is too late. I have a case at the moment that will probably save a life if professionals used the test for capacity correctly as opposed to basing a finding of incapacity on historical assessments and P’s attitude to professionals. In assessing a human as lacking capacity when they believe they have capacity and removing their power to make decisions about how they lead their life when they know they can make those decisions themselves is devastating in a way many of us will never experience.

So as I read the recommendations I decided to comment on it from that point of view and not attempt to summarise what it says, because others have already done so better than I will – see Alex Ruck Keene’s new website here and Lucy Series’ here. And to be honest, just read the report as it is enlightening and as ‘Chief Advocate’ Jakki Cowley (yes Jakki, a group of advocates referred to you as just that last week) tweeted on the morning the report was published: ‘it’s 7.48 & I’m reading this in bed as if my world is about to change. I can’t keep calm!’ Our world, if we hold the Government to implement these really practical changes, will change and so will the lives of so many vulnerable adults.

So how, exactly, is that going to happen? Well I want to get to the specifics in a more detailed post (I just haven’t got the time this week to read the suggested provisions in close detail) but for now, the recommendations shed some really rosy light on how the future could look for my clients if implemented.

Loads of recommendations have been made. Some really great recommendations, like putting in place an independent body as overseer for the Act; a steering group; giving the CQC a mandate to seek compliance with the Act (I know that the CQC has last year employed an MCA specialist so it is in a good position to do this); educating professionals, carers, families and people affected and better provision of relevant and timely information and updates about the rapid changes in the law. These are all so heart warming and well intentioned. 

 But what recommendations are going to make a difference for my client who has been disempowered and incarcerated? I have a feeling that Justice may come too late for him and he may give up before the matter can come properly before a judge but for thousands like him, how can they be helped?

Now to my favourite big bit of the report. Rip up the current legislation relating to Deprivation of Liberty Safeguards.

There was a finding that: ‘The provisions are poorly drafted, overly complex and bear no relationship to the language and ethos of the Mental Capacity Act. The safeguards are not well understood and are poorly implemented.’

Imagine if you will me, sat in a pokey room, with a middle aged man who doesn’t want to be where he is, doesn’t understand why he is there, and I have to explain to him in a way he understands that because a couple of assessors have formed the view that he lacks capacity to make decisions relating to where he should be accommodated for care and treatment (he doesn’t want) and that it is (in their opinion) in his best interests to be where he is and oh, it’s because he isn’t eligible to be detained under the Mental Health Act that he can’t access the Tribunal service he is more used to. He stopped listening when I said assessors. In face, it’s not just one of my clients, 3 of my clients kept in a care home against their will in the past 12 months fit that profile.

Complex stuff for lawyers. Impossible for people confined against their will for doing absolutely nothing wrong (‘It’s like being in prison without committing a crime’ are words I’ve heard twice this month). So it’s won’t come as a surprise that I welcome the fact that the Lords suggest we need to start again with this and excitingly, in Recommendation 20: ‘We recommend that replacement legislative provisions extend to those accommodated in supported living arrangements.’ Well haven’t we all been crying out for this for a long time?

I want to go into detail with their recommendations for changing the regime in another piece, but for now, back to how else the recommendations have made me shout ‘yes’ on behalf of my clients.

Moving away from the DoLS recommendations, another great idea which would have helped my client avoid his current distress is in the form of Recommendation 24: ‘We recommend that the Government consider the establishment of a form of self-referral for Independent Mental Capacity Advoate (IMCA) services to prevent the damaging delay that occurred in the case of Mr Steven Neary.’ Luckily for him, he had a s39D IMCA (see Lucy’s piece on the importance of this role here) who’s job it is to support P to access legal representation to challenge the fact that they are deprived of their liberty in the Court of Protection. But it would have been infinitely better for him, his carers, his family, the commissioners (and his lawyer) had I been on board earlier. A lot of distress and hurried decisions would have been avoided.

The report recommends earlier intervention and I really welcome the idea that a family member or individual affected by the Act could self refer to obtain an IMCA. Anyone who has heard me speak about the MCA will have heard my high praise for IMCAs and the Lords echoed this belief held by so many practitioners. We need more of them and yes, I do believe that their timely intervention will avoid unnecessary and costly litigation.

 Mediation and Local Authorities understanding when to bring an application to the Court of Protection will also help my client. I believe that quite frequently Local Authorities should take cases way before P has managed to track down legal advice. This causes more delay and distress for P.

Another strong suggestion that would assist lay people in accessing the right support at the right time: Recommendation 31: ‘We recommend that the Government, and in future the independent oversight body, provide clearer guidance to public authorities regarding which disputes under the Act must be proactively referred to the Court by local authorities. This should include situations in which it is the person who is alleged to lack capacity who disagrees with the proposed course of action. Efforts must be made to disseminate this guidance to families and carers as well as to local authorities.’

Currently legal aid is currently available on a non means tested basis for the client who is subject to a Standard Authorisation and wants to apply under s21A to challenge the SA in the Court of Protection. So my client is fine (if he can access a lawyer!). But the people who are deprived of their liberty without the protection of a Standard Authorisation, those 1000s who are unlawfully deprived of their liberty, they can’t access non means tested legal aid to challenge that. I’ve never understood that. It’s another gap.

The Lords want to close these gaps and inconsistencies and deal with the problem that some individuals who lack litigation capacity are left without representation by recommending (Recommendation 33) that ‘the Government reconsider the provision of resources to the Official Solicitor, with a view to determining whether some cases merit the same unconditional support as is currently afforded to medical treatment decisions.’ And at Recommendation 34: ‘We further recommend that the Government review the policy underlying the availability of legal aid for those who lack the mental capacity to litigate and therefore cannot represent themselves. For such people, denial of legal aid may result in having no access to Court. No-one who is found to lack the mental capacity to litigate should be denied access to Court solely because they do not have the means to pay for representation.’

I’ve come across this a couple of times. Acting at reduced rates or pro bono is one way to do it. But when am not the one making the decisions as to how a case should be funded, there are so many individuals who lose out. It is ridiculous to say that P will be protected by the court in the event that he or she cannot access funding. I have referred to that in a previous article (published in the ELJ).

So that the Lords are actively seeking remedy for that is encouraging. But having read the Governments proposals for Transforming Legal Aid, and the fact that the Government has already removed cases with Borderline prospects of success from scope, I hold out little hope for the extra funding required. 

So, a whistle stop tour as to how some of the recommendations would help those who I try and support. Even better are the recommendations that will support those who haven’t even got close to accessing legal support.

To be continued…



One response to “HoLMCA: What the Recommendations mean for my clients”

  1. […] Other commentators have been universal in their welcome of the report (if nervous as to the chances of the Committee’s recommendations being implemented).  In this regard, I would particularly direct readers to the characteristically thoughtful posts of Lucy Series and Jess Flanagan. […]