BASW England response to the Mental Capacity (Amendment) Bill

Dear Lord O’Shaughnessy,

We write on behalf of the British Association of Social Workers (BASW) to comment on the Mental Capacity (Amendment) Bill as it passes through Parliament. We welcome reform of the MCA 2005 and are encouraged by the high standard of Parliamentary debate at Committee Stage. We also welcome and encourage you to take note of all the cross-party work that was undertaken on this issue by the Joint Committee on Human Rights of the House of Lords and House of Commons. We thank you for the flexibility you have shown in indicating to Members of the House of Lords that you are willing to look again at some of the detail of the Bill as it continues its progress.

We see the Bill as an important opportunity to provide a clear definition of a deprivation of liberty (DoL). This was a missed opportunity in 2005 and new primary legislation provides an opportunity to fill that gap. As it stands, a definition has been provided in case law in the form of the Supreme Court judgment in Cheshire West. That gives us the current working definition of “under continuous supervision and not free to leave”. We support that definition and take the view that the issues are about a proportionate response to differential circumstances of DoL rather than the fact of DoL. It is clear that one of the greatest deficits of the current regime is that all cases in domestic or supported living arrangements can only be authorised by the Court of Protection even where the weight of opinion is that the DoL is necessary and proportionate. If the Government is not accepting of the Cheshire West definition as appropriate, we believe it would be essential to introduce a new primary definition that clearly substitutes for the current case law.

We believe that the major problem with the Bill as it stands is in the expectation that care home managers (with minimal funded training and time made available) will be able to take on the duties on the front line of Liberty Protection Safeguards (LPS). In our experience, it is not the case that there is currently duplication of assessments completed by private care providers as part of their process (as stated in the Bill’s impact assessment at 8.3). Whilst we observe that many care home managers are highly competent and committed to human rights, it is clear from current experience that many have struggled to adapt to the basics of MCA in the years since its commencement in 2007. There is a clear conflict of interest in combining the roles of day-to-day management and protection of liberty.

Whilst larger provider organisations may have the scope to create divisions of roles and responsibilities, we recognise that many smaller organisations or individual local homes simply do not have adequate scope or scale to ensure adequate separation of commercial interests, competing care priorities and individual human rights. The concept of “objection” does not seem to us to be strong enough in a context where vulnerable persons with limited capacity or communication skills could easily be pressured or interpreted as not objecting in circumstances where impactful decisions are being taken on their behalf. That after all was the essence of the triggering case of HL/Bournewood where HL was accepted by all as compliant. Given the difficulty senior judges, parliamentarians and highly experienced professionals have with the complexity of these issues, we cannot see it as being fair or reasonable to expect pressured home managers with brief additional funded training to take on the central role in determining a matter of the magnitude of deprivation of liberty.

We would also encourage you to give serious consideration to the inclusion of 16 and 17-year-olds within this LPS regime. Notwithstanding the ongoing work of Sir Simon Wessely and his team on Mental Health Act reform (and other wider children’s issues) we see very little scope for the “zone of parental responsibility” to include deprivation of liberty at any age and every good reason why the protections of the Liberty Protection Safeguards should be extended to cover older adolescents.

We look forward to a positive response from you to these proposals. We would be happy to discuss them further with you or your colleagues if that would be helpful.