Full submission to House of Lords select committee on MCA
Peter Edwards, Solicitor and Director
Peter Edwards (Peter Edwards Law)
Submissions to the House of Lords Select Committee on the Mental Capacity Act 2005.
‘What good is it making someone safer if it merely makes them miserable?’ Munby J
I am a Director of Peter Edwards Law and the Head of Civil Litigation and Private Client department. I have spent my professional life representing the rights of the vulnerable and those with mental health problems. I am President of the Mental Health Lawyers Association. I provide extensive training. I am the President of mental health charity; Imagine and broadcast on radio and television.
I have held the following appointments: Consultant to Solicitors Regulation Authority, Legal Consultant to the World Health Organisation, Law Society Chief Assessor Mental Health Review Tribunal Panel, Member of Central Policy Committee of Mental Health Act Commission, Law Society Mental Health and Disability Committee, Member NACRO Advisory Committee and Member of MIND Council of Management.
My perspective is based on over 40 years experience as a solicitor spanning the divide between mental health and mental capacity in the context of representing vulnerable people. I also spend a great deal of my time training professionals and others, and through that, I am able to get a sense of how the MCA is, or is not, being implemented.
Call for Evidence. Overview and context
1. To what extent has the Mental Capacity Act 2005 (MCA) achieved its aims?
2. Which areas of the Act, if any, require amendment; and how?
3. At the core of the MCA are its principles and definitions of capacity and best interests. Are these appropriate?
4. To what extent has the Mental Capacity Act achieved its aim?
1. It is important to distinguish the Mental Capacity Act (MCA) (which, on the whole, is a well drafted and an effective piece of legislation) with deprivation of liberty safeguards (DoLS) which is, frankly, chaotic, bureaucratic and contrary to the best interests of those who are ‘detained’. Even senior judges cannot agree on what this means. (Cheshire West and Chester Council v P (2011) EWCA Civ 1257)
2. The MCA is well drafted and simple legislation which is poorly applied. This fundamentally undermines the rights of those who lack capacity and it is used as a draconic tool to control those who lack capacity for the apparent benign reason that a decision is in their ‘best interests’. The checks and balances which are in the legislation are not applied because many decision makers (D) fail to understand or apply the process of decision making contained in the MCA and its Codes of Practice. It is important to realise that judges of the Court of Protection are decision makers in exactly the same way as others and we can learn a great deal from their approach. They use the same tools. A good example of best practice can be found in the judgement of Mr Justice Hedley in the case of A Primary Care Trust v P (2009) EW Misc 10 (EWCOP).
In my view, the fundamental impediments to the effective implementation of the MCA are:
A, There is a lack of access to justice by those who lack capacity.
How does the person who lacks capacity to make a particular decision at a particular time challenge, either the finding of incapacity, or the decision itself? In the case of CC v KK and STCC  EWHC 2136 (COP), in the face of the unanimous views of both the independent expert psychiatrist and all of the professionals, Mrs KK asserted that she had capacity to make decisions concerning her residence. Mr Justice Baker agreed and stated:
25. ‘Equally, in cases of vulnerable adults, there is a risk that all professionals involved with treating and helping that person – including, of course, a judge in the Court of Protection – may feel drawn towards an outcome that is more protective of the adult and thus, in certain circumstances, fail to carry out an assessment of capacity that is detached and objective. On the other hand, the court must be equally careful not to be influenced by sympathy for a person’s wholly understandable wish to return home.’
In other words, there may be a finding of lack of capacity in order to effect control of the decision making process. How very different the outcome of this case might have been if Mrs KK herself did not give evidence in the Court. It is very unusual for P to give evidence n the Court of Protection.
How do vulnerable people access the potential protection of the MCA?
It is hard to imagine an elderly person, when being told that they have got to move into a care home, reminding D of the first principle of the MCA. The old adage that ‘knowledge is power’ is very true and when you are dealing with very vulnerable people, it is very difficult for them to access that information.
There is an interesting contrast with the Mental Health Act (MHA) when a person is detained under section. There is a statutory obligation on the managers (Section 132) that requires them to take steps to ensure that a person ‘understands’ their rights. I appreciate that this relates to those who are ‘detained’. However, who has the obligation to ensure that those who lack capacity understand what rights they have under the MCA? No one.
So how can a person who lacks capacity instruct a solicitor?
The relationship between a solicitor and client is contractually based and if the client lacks capacity to enter into such a contract, strictly speaking they are left without the ability to seek legal advice. I have been seeking clarification from both the Law Society and Solicitors Regulation Authority on this for many years without success. The Official Solicitor will only get involved in a case involving incapacitated adults if invited by the Court. But how does the case get to court for them to be invited? Also, there are many cases where what is required is advice, not litigation.
B. There is a misconception that only doctor’s can assess capacity (when in fact many doctors have never any training on how to assess capacity).
C. There is a misconception that capacity assessments and best interest decisions bind staff (when of course the role of D is time and decision specific).
D. There is a misconception that the ‘next of kin’ posses decision making powers. This is constantly reinforced by health and social services who ask people who their next of kin is.
E. Professionals seem to spend a lot of time at ‘best interests’ meetings. There is often little or no evidence that before best interest decisions are made, that the relevant person (P) has been assessed as lacking capacity. The first principle of the MCA is that all adults have capacity unless there is evidence they don’t. The term ‘best interests’ has become a holy grail and when a decision is made by the best interests meeting that seems to bind subsequent action by professionals.
F. The most fundamental problem of all is linked to point 4 above. Health and social services professionals tend to make decisions by committee, whereas the MCA is about the individual responsibility of D.
G. Problems are exacerbated by attempts by organisations to codify the MCA into operational procedures. This can have a stultifying effect. It can undermine the very principle that the buck stops with D and decision making is time and decision specific.
H. Because the word ‘mental’ is included in the title there is an assumption that you do not need to incorporate the basic principles of the MCA into practice unless you work in the world of ‘mental’. This was well illustrated in the case of Commissioner of Police for the Metropolis v Z  EWCA Civ 69. This was an appeal by the Metropolitan Police in relation to the action of the police officers in controlling a young autistic boy at a swimming pool. The police had sought to argue (inter alia) that the MCA was overridden by operational necessity. The Court of Appeal robustly rejected this. Lord Dyson (para 49):
“the MCA does not impose impossible demands on those who do acts in connection with the care or treatment of others. It requires no more than what is reasonable, practicable and appropriate. What that entails depends on all the circumstances of the case.”
‘It was therefore open to the judge to hold, as he did, that the officers had not acted in ZH’s best interests’.(para 50).
The growth of the ‘safeguarding industry’ and how safeguarding relates to the Mental Capacity Act is a complex issue and troubles me greatly. Safeguarding vulnerable adults is vital. But this has become an industry in itself and can be used not to safeguard but to control. The vulnerable person, in being ‘protected’ might be removed from their own home environment. They may well feel as though it is they who are being punished. In the case of Re MM (an adult)  EWHC 2003 (Fam) Mr Justice Munby (as he then was) stated:
118. The fact is that in this type of case the court is exercising an essentially protective jurisdiction. The court should intervene only where there is a need to protect a vulnerable adult from abuse or the real possibility of abuse…. The jurisdiction is to be invoked if, but only if, there is a demonstrated need to protect a vulnerable adult. And the court must be careful to ensure that in rescuing a vulnerable adult from one type of abuse it does not expose her to the risk of treatment at the hands of the State which, however well intentioned, can itself end up being abusive of her dignity, her happiness and indeed of her human rights. That said, the law must always be astute to protect the weak and helpless, not least in circumstances where, as often happens in such cases, the very people they need to be protected from are their own relatives, partners or friends.’
120. A great judge once said, “all life is an experiment,” adding that “every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge” (see Holmes J in Abrams v United States (1919) 250 US 616 at pages 624, 630). The fact is that all life involves risk, and the young, the elderly and the vulnerable, are exposed to additional risks and to risks they are less well equipped than others to cope with. But just as wise parents resist the temptation to keep their children metaphorically wrapped up in cotton wool, so too we must avoid the temptation always to put the physical health and safety of the elderly and the vulnerable before everything else. Often it will be appropriate to do so, but not always. Physical health and safety can sometimes be bought at too high a price in happiness and emotional welfare. The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good – in particular to achieve the vital good of the elderly or vulnerable person’s happiness. What good is it making someone safer if it merely makes them miserable?
Little is often said about the large sums of money lost by incapacitated people in legal costs in the Court of Protection. These cases may cost many thousands of pounds. P may not be eligible for legal aid and even if they are they are likely to lose any funds they have in excess of £3000 by way of legal aid contributions.
One of the fundamental problems with the implementation of the MCA is that health and social services like to make, what I call, ‘group decisions’. People get around tables and discuss and debate (often without an understanding of the legal framework or access to legal advice) and then make decisions. This is completely at odds with the principles of the MCA in that capacity is time and decision specific. People can get labelled ‘incapacitated’ as though this is an ongoing and permanent state that relates to all decisions.
The labelling of somebody as incapacitated removes all of their rights and powers of decision making.
13. There is a false notion that the MCA is ‘less restrictive’ that the Mental Health Act. How can that be when the MCA can be used to effect total control without deprivation of liberty? It is worth recalling the words of Lord Steyn when he eloquently expressed concern about the powers of the common law doctrine of necessity in the House of Lords decision in R v Bournewood Community and Mental Health NHS Trust Ex p. L  1 AC 458:
‘The common law principle of necessity is a useful concept, but it contains none of the safeguards of the Act of 1983. It places effective and unqualified control in the hands of the hospital psychiatrist and other health care professionals. It is, of course, true that such professionals owe a duty of care to patients and that they will almost invariably act in what they consider to be the best interests of the patient. But neither habeas corpus not judicial review are sufficient safeguards against misjudgments and professional lapses in the case of compliant incapacitated patients. Given that such patients are diagnostically indistinguishable from compulsory patients, there is no reason to withhold the specific and effective protections of the Act of 1983 from a large class of vulnerable mentally incapacitated individuals. Their moral right to be treated with dignity requires nothing less. The only comfort is that counsel for the Secretary of State has assured the House that reform of the law is under active consideration.’
In my experience many professionals (especially health professionals) are still making decisions in the same way that they did under the common law doctrine of necessity.
4. To what extent have the five principles of the MCA been implemented in frontline practice? What evidence is available to assess this? Is there a satisfactory balance between enablement and protection?
It is my view that as far as the legislation is concerned, there is a satisfactory balance. However, the fundamental problem is that in order to properly implement the provisions of the MCA this requires a change of culture. From my experience, whilst the five principles are excellent, there is a fundamental problem in that people rarely seem to understand who the decision maker is or the fundamental importance of their role. Clearly it is D’s responsibility to implement the principles. If this does not happen then what chance of the decision making process working effectively?
16. The importance of statutory codes was set out in the decision of R (Munjaz) v Ashworth Hospital Authority (2005) UKHL 58. This was then incorporated into the introduction to the Code of Practice to the MHA (as amended in 2007).
‘While the Act does not impose a legal duty to comply with the Code, the people listed above to whom the Code is addressed must have regard to the Code. The reasons for any departure should be recorded. Departures from the Code could give rise to legal challenge, and a court, in reviewing any departure from the Code, will scrutinise the reasons for the departure to ensure that there is sufficiently convincing justification in the circumstances.’
This would apply equally to the MCA and DoLS Codes. In other words when making decisions the starting point would be the Code. It either has to be followed or reasons for departure recorded. In my experience most professionals have not read any of the Codes. If they had, I suspect we would not have the problems that now exist.
The principles of the MCA are very good but from my experience, the second principle is rarely acknowledged and myself and my staff have spend over the years many hours reading thousands of pages of notes during the course of our work and it is rare that one finds documentary evidence that the second principle has been even consider or acknowledged.
Another common problem is that there seems to be an assumption of incapacity rather than an assumption of capacity. There seems to be a discriminatory practice that when dealing with certain client groups e.g. the elderly or learning disabled, it is for them to show that they have capacity. Old habits die hard.
In my experience, with certain professional groups, (especially nurses and doctors), when asking them to justify decision making, they adhere very closely to the concept of ‘best interests’. ‘It is in their best interests’ is seen as a justification for taking control. When we ask for evidence of a capacity assessment that is the step they have often missed. In other words, the first three principles are ignored.
5. How effective was the Government’s implementation plan? What measures were taken to ensure that professionals and families of those who lack capacity know about and act in accordance with the provisions of the MCA? Has it led to sustainable change?
There is no doubt the Government invested large sums of money in training to try and ensure the MCA was properly adhered to. It was supported by an excellent Code of Practice. I believe the implementation plan failed in part because most professionals and other decision makers have never read the Code of Practice. I would suggest that many do not even know of its existence. It is certainly not used as the tool for effective and lawful decision making for which it was in part designed.
I fear that many trainers still take a routinised approach to teaching. Unless a cultural and ethical approach accompanies the legal training, my view is that it is impossible for frontline staff or any other decision makers, to link the MCA with their day to day decision making. It has to be integrated into the way people work and the way people approach their contact with vulnerable people. It is not apparent to me what, if any, training doctors or other health care professionals get in how to incorporate the MCA in to their day to day working practices.
I believe that there is a divide between those who write policies and procedures and those who provide the frontline service. It is noteworthy that my training sessions are often attended by frontline staff (with the notable exception of doctors, managers and policy makers are not there. Those who attend may hear a trainer correctly set out the law but there may be a disconnect between this and their experiences at work.
Surely the purpose of training is to ensure a consistent application of the law into practice. Whether your rights are respected should not depend on who is on duty. In an ideal world the policies and procedures would be the tool by which this is audited and delivered. In my experience there is a total disconnect between policies and procedures, training and the actions of frontline staff. This fundamentally undermines the effectiveness of the MCA and its ability to protect the rights of vulnerable people.
6. Is the Act widely known and understood by professionals required to implement it? How does this differ across different sectors, such as health, social care, banking and others?
I do think that the MCA has been a force for good and I think there is a slow attitudinal change taking place. It is just a shame that much of that change seems to be driven by litigation.
As a human rights lawyer, I have a passionate belief that people should be encouraged to respect the law and implement it rather than wait to challenge people when they don’t implement it properly. The Court of Protection is littered with cases where, especially local authorities have failed to take appropriate steps.
In the case of G v E, Manchester City Council and F (costs)  EWHC 3385 (Fam) the Court of Protection took the unusual step of awarding costs against Manchester City Council. Although never officially revealed it is believed that this may have cost the citizens of Manchester somewhere approaching £1 million. .Mr Justice Baker stated:
41. In this case, however, I am entirely satisfied that the local authority’s blatant disregard of the processes of the MCA and their obligation to respect E’s rights under the ECHR amount to misconduct which justifies departing from the general rule. Miss Irving boldly relies on the ignorance of the local authority’s staff as an excuse and submits that the complexity of the statutory provisions left large numbers of professionals uncertain as to the meaning of “deprivation of liberty”. Given the enormous responsibilities put upon local authorities under the MCA, it was surely incumbent on the management team to ensure that their staff were fully trained and properly informed about the new provisions. If a local authority is uncertain whether its proposed actions amount to a deprivation of liberty, it must apply to the Court. As it is, the local authority’s actions in this case would have infringed E’s Article 5 and 8 rights under the old law as well as under the MCA.
7. Is the Act widely known and understood by those who are directly affected by it and by their non-professional carers? To what extent does the Act provide protection and reassurance for informal carers? Has the right balance between struck between protection of the carer and protection of the individual lacking capacity?
The answer is emphatically no. I have been training in this field for over 35 years and my view is that there must be a fundamental flaw with basic training, particularly of doctors and nurses, because they don’t seem to have the necessary mindset to implement the legislation.
If Parliament did make an error with the MCA, it was to add the word ‘Mental’ in front of the words ‘Capacity Act’. This has created a myth that unless you work in the world of ‘mental’, the MCA is nothing to do with you. I think it is fundamentally wrong to believe that the problem in correctly implementing the MCA can be improved by a change in the legislation. That simply is wrong. It is a cultural change that is required to allow a good piece of legislation to be implemented properly. You ask whether the understanding differs across various sectors and my belief is that it doesn’t. There are clearly some professionals who have an excellent understanding of the MCA and implement the Codes of Practice into their day to day practices. However, I find these people the exception rather than the rule. Where you do find them, they tend to come from the ranks of social services.
30. You ask whether the right balance has been struck between the protection of the carer and the protection of the individual lacking capacity. I am not sure I fully understand this question in that the MCA specifically provides protection under Section 5 for decision makers. In so far as carers have to be consulted, this is clearly provided for in the MCA, the Code and in decisions from the Court of Protection which emphasises the importance of Article 8 of the European Convention of Human Rights. The starting point for decision making should be respect for the private and families lives of those concerned.
8. Has the Act ushered in the expected, or any, change in the culture of care?
In my opinion the answer is emphatically ‘no’. The MCA can be very empowering. As legal professionals, we are able to hold health and social services professionals to account. An example is the case where an elderly lady living on her own was removed by health and social services initially to hospital and then to what can only be described as a secure care home simply on the basis of best interests. I was brought in by a very concerned advocate and on me requiring them to assess her capacity, they discovered she had capacity to decide where she lived. Even then, they would not allow her to go home until a member of my staff and a friend of hers were dispatched to the care home for the purpose of allowing this lady to effect her wish to return home even if this was an unwise decision (the third principle).
9. Is there any evidence that the provisions of the MCA affect some groups disproportionately? If so, what data exists to compare representation across different socio-economic groups, Black and Minority Ethnic groups, and gender? I do not feel qualified to express a view on this.
10. Are those directly affected by the Act being enabled and supported to make decisions for themselves to a greater or lesser extent than they would have been in the past? Does the means by which the decision is made – ‘general authority’, Lasting Power of Attorney, deputyship, Court of Protection – affect the quality of decision making? I do not feel qualified to express a view on this.
11.What evidence is there that advance decisions to refuse treatment are being made and followed?
I do not feel qualified to express a view on this.
12. Has the MCA fostered appropriate involvement of carers and families in decision-making?
I have seen no evidence of this.
13. Has the role of the Independent Mental Capacity Advocate (IMCA) succeeded in providing a voice for clients and an additional safeguard against abuse and exploitation for those who have no-one to speak on their behalf?
I would love to answer this question positively and there is undoubtedly some excellent work undertaken by IMCA’s. However this is statutory commissioned advocacy and is not to be confused with general advocacy. IMCAs are often excluded because of the role of family. This role may not always be positive and even where a family is loving and supportive, the views of P (which might be different) are can be stifled.
14. Has the level of referrals to IMCAs met expectations? What are the reasons for the regional variations in the number of referrals?
I do not feel qualified to express a view on this.
Are IMCAs adequately resourced and skilled to assist in supported or substituted decision making for people lacking capacity?
I suspect not.
Deprivation of Liberty Safeguards
16. Are the safeguards in the Deprivation of Liberty Safeguards (DoLS) adequate?
The simple answer is no. It is not possible to tinker with these to make them effective. They are fundamentally flawed. The confusion around the pivotal issue in respect of what is ‘restraint’ and what is ‘deprivation’ prevents a consistent approach to the human rights of those who lack capacity.
17. Are the processes for authorisation, review and challenge of DoLS sufficiently clear, accessible and timely?
As the whole notion of DoLS is not working effectively it must follow that the processes associated with it are also failing.
The Court of Protection and the Office of the Public Guardian
18. Are the Court of Protection and the Office of the Public Guardian sufficiently understood and accessible to all? Are they operating effectively and successfully?
Are they assessable to all, certainly not. In order to be accessible people need to be more aware of their roles and when to use them. They became less accessible when the Government decided that they should lose their own websites.
Are they operating effectively and successfully? The Court is slow, cumbersome, expensive and dominated by interpretations of the law. It must be simplified to be made more accessible. Having said that, many of the judgements are wise, thoughtful and assist greatly in an understanding of the MCA.
I note there are no questions about the Official Solicitor. They are clearly overwhelmed and in some cases feel they cannot take on the role of litigation friend. Who is then left to perform that task? This has not been thought though. We have worked very successfully with a number of IMCA’s but they are not commissioned to perform this task. Much more work needs to be done on this.
19. What has been the impact of the introduction of Lasting Powers of Attorney (LPA), especially with regard to decision making on matters of personal care and welfare?
I am concerned that there seems little focus on informing people who have capacity of their ability to plan for their incapacity. Whilst financial LPA’s are increasing, health and welfare planning would seem somewhat rare. Even when this is done, my experience is that health and social services do not understand the powers of the attorney and often have no effective mechanism for registering their existence. If you were to do one, where would you send it? This would seem to undermine the wishes of Parliament. Perhaps people’s lack of understanding is wrapped up in the misunderstanding of the ‘powers’ of the next of kin.
20. What concerns, if any, are there regarding the costs associated with registering an LPA, or with making an application to the Court of Protection?
A complex matter before the Court can cost each party in excess of £30000.
21. Is legal aid available and sufficient? What impact will the recent and proposed reforms to legal aid have?
The confusion around s.21A MCA is a problem. If a person appeals against their deprivation of liberty and they have funds that would normally mean that legal aid was not available, their legal aid is not means tested. However, if in the process of the proceedings the court wishes to determine best interests (which is part of the criteria for an authorisation) it is likely that the Legal Aid Agency will terminate legal aid thus frustrating the intention of Parliament.
24. How well is the relationship with the mental health system and legislation understood in practice?
Not very well. The two worlds do not coexist comfortably. This is partially the fault of the Government who had the opportunity of dovetailing both the MHA (amended 2007) and MCA (2005). This was not done. The courts have assisted e.g. GJ v The Foundation Trust (2009) EWHC 2972 (Fam) where Mr Justice Charles asserted the principle that the MHA takes precedence where it applies.
In essence, rights under the MHA are well established and understood. In the case of C (by his litigation friend, the OS) v Blackburn with Darwen Borough Council & A Care Home & Blackburn with Darwen Teaching Care Trust  EWHC 3321 (COP) 6.12.11 Mr Justice Peter Jackson stated:
35. In my view, there are good reasons why the provisions of the MHA should prevail where they apply. It is a self-contained system with inbuilt checks and balances and it is well understood by professionals working in the field. It is cheaper than the Court of Protection.
Dated 2nd September 2013
Peter Edwards Law
Hoylake CH47 2AE
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