What is the place of law? News from the second reading of the Mental Capacity Amendment Bill

“[The Law Commission] is made up of lawyers, so they prefer law but there are other ways of doing things.”

In a perhaps telling phrase, Lord O’Shaughnessy (Parliamentary Under-Secretary of State, Department of Health and Social Care), explained at second reading of the Mental Capacity (Amendment) Bill why it is that the Government is not moving forward with the Law Commission’s proposals for upgrading the MCA 2005 (1) to respond to the lessons of the first decade of its life; and (2) to bring England and Wales closer to compliance with the CRPD.

As a lawyer (but not one speaking on behalf of the Law Commission), I hope I can be forgiven if I am not immediately attracted by the answer given by Lord O’Shaughnessy, although it raises some fascinating existential questions about the place of law which (wearing an academic hat) I will no doubt be drilling into in due course.

It is, though, interesting that in the Government’s initial response, it struck a rather different tone: as we can see from looking at the proposals and their responses in turn (together with some – lawyerly – observations thereupon):

1. The proposed amendment to s.4 MCA to (1) require steps to be taken to ascertain the person’s wishes and feelings, beliefs and values; and (2) place particular weight upon them.   This was accepted by the Government, who (as Peter Jackson LJ has observed in Re PW, at para 89) noted that “[t]aking past and present wishes and feelings into account already represents good care practice. We therefore agree that this should be enshrined into law.”  Implementation of this step is, I would strongly suggest, required to secure greater compliance with the CRPD; indeed, it is arguable that such would in fact meet head on the requirement in the CRPD for measures relating to the exercise of legal capacity to respect the “rights, will and preferences” of individuals with disabilities

2. Amendments to limit the scope of the defence (or, as Lady Hale has characterised it, the ‘general authority’ contained in s.5 MCA 2005) in the case of serious interferences in personal autonomy.  These amendments, modelled on those contained in the Northern Ireland Mental Capacity Act, were accepted by the Government.  They would, in my view, provide an extremely important step towards not only respect for the rights, will and preferences of persons with disabilities, but also securing the procedural guarantees that the Strasbourg court has repeatedly said are implicit in Article 8 ECHR in respect of interferences with personal autonomy (see, further, the discussion of the current ‘wild west’ nature of s.5 here).   I would further suggest that removing this part of the Law Commission’s proposals seriously risks weakening the overall thrust of the scheme that it proposed.  If, as Peter Jackson J recognised in Neary, Article 8, rather than Article 5, is the nub of the matter, then measures are required to ensure that public authorities focus with sufficient care upon whether moves into institutional accommodation are actually required, and that they think about this before making that move.   The question can – and I would suggest should – be asked as to what provisions in the Bill as now introduced into Parliament in fact could prevent another Neary case;

3. The introduction of a regulation-making power to enable supported decision-making schemes to be brought in.  This power was accepted in principle, the Government noting that it is “committed to the principle of supported decision-making and this principle is enshrined in the Mental Capacity Act. We will consider approaches to supported decision making as part of our response to the UN Convention on the Rights of Persons with Disabilities [presumably a reference to the Committee’s concluding observations on the UK].”   Especially given that there is no other obvious vehicle by which such regulations could be introduced, and the proposal was simply to enable a regulation-making power to be made (rather than to introduce a fully-fledged statutory scheme such as contained in Ireland), I might suggest that the sound that you are hearing is the sound of an opportunity being missed;

4. The codification of the concept of advance consent, again, accepted in principle.  I would suggest that it is unfortunate if the opportunity is not taken to codify a principle that mirrors so directly that of advance refusal of treatment and which would provide a clear and principled basis to support (in the CRPD context) individuals to exercise legal capacity in advance by making clear what arrangements for their care they are content to receive, and to give an incentive for advance care planning.

In a wide-ranging second reading debate on the Bill in the House of Lords on 16 July (uncorrected transcripts of which can be found on Hansard here), peers from all points on the political spectrum (and none) raised concerns as to the missing bits of the Bill, along with detailed concerns as to the way in which the LPS themselves have been modified along the way to Parliament (as to which, see further here), in particular in relation to the place of the person’s wishes and feelings, the role of families and attorneys, the burden on (and the ability of) care homes to comply with the new obligations, the absence of a definition of a deprivation of liberty, and the interaction with the independent review of the MHA.

Whilst there was a general welcome that legislation had been introduced – and one that I would certainly echo – there was also a very strong sense that this was a Bill requiring considerable further work before it could properly leave the House of Lords.

In fairness, Lord O’Shaughnessy recognised this, and it is worth reproducing (lightly edited) his wrapping up speech before the Bill was moved a second time to indicate where things will be going before Committee stage in the House of Lords in early September:

My Lords, I thank all noble Lords for an incisive, illuminating, at times technically complex but always wise debate, which has been a credit to the House. I will attempt to answer as many questions as I can. I will not try to cover all of them as we actually would be here all night, but I will have time to explore the major categories of issues. I hope noble Lords will indulge me as I do that.


I think the general tone of the debate was that there is a strong desire to reform the DoLS system and to end, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, pointed out, the lawlessness and the highly unsatisfactory current situation. My noble friend Lady Barran brought this to life. The truth is that the current system has overwhelmed local authorities and others. As the noble and learned Lord, Lord Brown, pointed out, Cheshire West has extended the definition to whom this should apply, such that the backlog of cases is now extraordinary. The only consequence of that is a denial of access to justice. The challenge we have in the Bill is to make sure that we do not have access to justice just in theory but that it actually happens, and it cannot happen if more than 100,000 people are getting it in theory but not in practice.

As somebody who was new to this before preparing for the Bill, the situation almost sounds too good to be true. We are going to extend the number of people who have access to safeguards but we are also going to stop the system being overwhelmed and save money. This is achievable because it is about introducing a proportionate system that reflects the needs and wishes of the people whom it is there to protect, rather than having a maximalist approach that in theory applies to everyone but in reality does not and is sometimes random in its application, which is clearly unacceptable.

As many noble Lords have pointed out, the system that we need to create must be patient-led. It needs to have proper oversight and to deliver that access to justice which we have discussed. Clearly, if, as the noble Baroness, Lady Finlay, pointed out, only one in 20 have benefited from the current system, it is highly inefficient. As many noble Lords also pointed out, there is a huge urgency here.

Many noble Lords pointed out the benefits of the new system. I will come to some of the challenges but, ultimately, this is about making sure that caring organisations take a more active role in the assessment of deprivation of liberty. Where they do so and integrate it into their care planning, we will provide a proper system of oversight and support for individuals deprived of their liberty in general but, specifically, for those who object, or whose families who care for them object. That is ultimately what we are trying to do and it is the intention of the Bill.

Several noble Lords, including the noble Baronesses, Lady Jolly, Lady Greengross and Lady Thornton, asked about our consultations to date. There have been very wide consultations but this debate has shown that there is much work to be done over the summer, not just with noble Lords but with stakeholder groups, to ensure that we are not only explaining the consequences of what is proposed—I think there are still some misunderstandings about that—but able to demonstrate the benefits and, critically, learn how we can further improve what is proposed.

I turn to some of the issues raised. Several noble Lords including the noble Lord, Lord Touhig, the noble Baronesses, Lady Barker, Lady Finlay, Lady Greengross and Lady Tyler, the noble and learned Lord, Lord Brown, and the noble Baroness, Lady Murphy, talked about the absence of a statutory definition. I can tell the House that we are aware of that and are listening particularly to the recommendations of the joint committee. However, the debate demonstrated some disagreement over the right way forward. There are various options, such as definitions in the Bill or through a code of practice, but we clearly need to get to an answer in order to proceed.

We have talked about wanting a system that has the person’s wishes and best interests at the heart of the process. That was raised by the noble Lord, Lord Touhig, and endorsed by the noble Baronesses, Lady Barker, Lady Finlay, Lady Greengross, Lady Meacher, Lady Browning and Lady Hollins. It is absolutely right for us to be clear that there is no watering down of the interests of the individual concerned through this process. As the noble Baronesses, Lady Barker and Lady Finlay, pointed out, capacities can fluctuate; as the noble Baronesses, Lady Browning and Lady Hollins, pointed out, they can also be varied—strong in one area and weak in another. Any system needs to take account of that and I can tell the House that it is absolutely not our intention to water down the role of a person’s expressed wishes. The best interest test still applies absolutely in the care setting, but the necessary and proportionate test is to account for those cases where a person may wish to do something regarding their liberties which is contrary to their best interests for their individual care. Striking that balance and making sure that there is proper oversight, with proper advice for people who are unable to enunciate their own wishes, is at the core of getting the Bill right.

As noble Lords have also pointed out, getting the Bill right is actually about getting a statutory code of practice right. It is out of date and there is a degree of urgency about improving it. I will return to that in a moment but, in talking about the statutory definition, I will finish on the power of attorney and the role of families. They still have primacy under the Mental Capacity Act, the principles underpinning which still apply. It will not be possible to deprive a person of liberty when the attorney acting on their behalf has stated that their best interests are served otherwise. I want to make that clear but it is something that we will need to explore and explain better. Attorneys will be part of the group that is to be consulted, and the Bill creates an explicit requirement for further consultation with families. Family members can also act as appropriate persons, so I think there is a greater strengthening of the role of those acting on behalf of a person deprived of their liberty in the process of scrutinising that and making sure that it is done appropriately.

Baroness Barker

If this matter is unclear to some of us who can claim to be fairly well informed on it, clearly, there has been a communication problem. Might I suggest to the noble Lord that it would be enormously helpful—as it has been in similar situations—to have a copy of the Act, as amended by the Bill, for us and interested parties to look at? Believe me, it makes the whole business a great deal clearer and easier to understand.

Lord O’Shaughnessy

That is an excellent suggestion. I should be clear: any confusion comes from a failure to communicate on our behalf, rather than there being any suggestion that noble Lords who are extremely expert on this do not understand what is proposed. There is a need to explain better exactly how all this will work in practice.

Obviously, the system depends on the quality and independence of the reviews, assessments and authorisations that take place; that issue was particularly raised by the noble Lord, Lord Touhig, and the noble Baroness, Lady Hollins. There were also questions asked by the noble Baronesses, Lady Tyler, Lady Murphy, Lady Jolly and Lady Thornton, about the capacity of those carrying out assessments in local authority care homes, the NHS and so on to do them properly and in a way compliant with the law. I agree with noble Lords that in the coming weeks we will need to set out much more clearly how that independence support and those assessments will be staffed and provided, making sure ​that there are sufficient resources and proper training. I am reassured that training in the implications of the Mental Capacity Act is part of medical training, and that there are Health Education England resources for that. Clearly, all that will need to evolve as we go through this process and the Act itself is amended.

The noble Baronesses, Lady Barker, Lady Greengross, Lady Tyler and Lady Murphy, and the noble and learned Lord, Lord Brown, asked about the interaction with mental health legislation and whether we should have delayed publication. The noble Baroness, Lady Tyler, described a tension between the two Acts. We are conscious of the interface—that is the term used—but there is an urgency to reform the system, notwithstanding its interaction with the Mental Health Act. We do not yet have a timescale on completion of the review and any subsequent legislation that might be required. There has been lots of talk about the work to reform—the committee, the Law Commission, the Joint Committee and so on—and we need to get on with this, cognisant all the time that subsequent changes may need to be made once we have the outcome of the Mental Health Act review. It is not in my gift to promise time for legislation in the future but we are cognisant of the need to make sure that our interface works, once we have the review itself completed.

Several noble Lords asked why the Bill does less than the Law Commission. We could spend a lot of time going through that, but I do not propose that we do so at this point. We can achieve non-legislatively several of the Law Commission’s proposals; it is made up of lawyers, so they prefer law but there are other ways of doing things. One of the key issues raised is the Bill’s not applying to 16 and 17 year-olds. There is clearly an important interplay here with the education, health and care plan process, but I have listened to noble Lords on the subject today and shall reflect on whether we can do something about it.

The code of practice was raised by the noble Baronesses, Lady Finlay and Lady Greengross, and my noble friends Lady Barran and Lady Browning. Getting it up and running quickly is critical. Detailed work is going on, and we need to be very specific in it to provide reassurance about how it will work. Unfortunately, I do not have a timetable yet for its production, but I will endeavour to get hold of one. We need to make sure that its implementation is properly resourced. The CQC will continue to inspect its implementation, so there will still be that quality oversight.

A few other issues were raised. Many noble Lords referred to “unsound mind” being an unhelpful and, frankly, out-of-date phrase. I do not disagree. The concern here is the interaction with the jurisprudence and the ECHR itself. If we were to move on that—I make no commitment at this point—we would need to think it through very clearly, but I would like to explore it.

The noble Baronesses, Lady Barker and Lady Jolly, asked about legal aid. I can confirm that it is, and will still be, available on a means-tested basis [*]. The noble Baroness, Lady Meacher, and my noble friend Lady Browning asked about advance consent—an issue that the Law Commission also raised. Again, there is an important distinction to be made here between an ​advance decision to refuse treatment, which will continue to be respected and is untouched, and advance consent to a future deprivation of liberty. Although that was in the Law Commission report, officials engaged in the process indicated that this did not receive support from families. There was a concern that you could sign yourself up to being deprived of your liberty at some point in the future, so it did not garner support. Perhaps it was the wrong subset or sample of people; nevertheless, we need to consider the best way forward on that.

Finally, the noble Baroness, Lady Thornton, asked about the equality impact assessment. I do not have an answer at this stage about why it was not carried out but I will endeavour to get one.

To conclude, I hope that I have been able to summarise the main issues and topics. Clearly, there are some very big questions that still need to be answered, but I return to the point that my noble friend Lady Browning made, which is that we need to solve the problems this time. We cannot introduce another Bill or piece of legislation that just creates a problem three years down the line. It is not just about the Bournewood gap; it is about making sure that we avoid, and do not create, any other gaps. The words “nightmare” and “disaster” have been used to describe the current system, and that is why we need to act now, but clearly we need to act in such a way that we do not create another problem further down the line.

It has been clear from this debate that there is still much work to be done to provide the right kind of reforms that we all want to see. Looking at the Chief Whip, I am sure that we will have adequate time in Committee to make sure that the Bill is in the best possible shape. We saw a nod of the head from the chief, so that is good. This debate has demonstrated—the noble Baroness, Lady Thornton, said as much—that there is no group of people better qualified to improve this legislation and make sure that we get the right reforms. I look forward to engaging with noble Lords and others throughout the coming months to make sure that we can achieve that and deliver a Bill that provides for people deprived of their liberty the fair and proportionate access to justice that we all want to see.

Before Committee stage is reached, however, and to enable peers (of any hue, as this is a quintessentially non-partisan issue) to inform themselves, I would urge all interested parties to consider:

1. What steps are required to improve the LPS sections of the Bill.   I have not, in this post, commented upon those sections in detail, not least because I know that many bodies and organisations are already busy informing peers as to crucial points of detail.  The Chambers Mental Capacity Report team will also be collating material for publication in a special issue of the Report: email mcab@39essex.com if you are interested in contributing;

2. Whether they share Lord O’Shaughnessy’s view of the law, and, if not, what practical examples they can bring forward to show that “MCA 1.5” does not simply represent lawyers talking to themselves.

Nb, the views expressed above are expressed in a purely personal capacity, and not wearing the hat of either the former consultant to the Law Commission project, or the current legal adviser to the Mental Health Act Review.

* One anticipates that Lord O’Shaughnessy means “non” means-tested.

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