Prospective care home residents' wishes to be taken into account

Elderly people and individuals with reduced capacity should have their wishes and feelings taken into account before decisions are made to move them to a home, the Law Commission has proposed in a series of root-and-branch reforms to Britain's mental capacity laws.

The new rules, outlined in a consultation in summer 2015, will ensure that local authorities carry out a more proportionate assessment when determining a person's 'best interests' under section 4 of the Mental Capacity Act. This will give greater input to those concerned in many cases often seen as borderline.

'It won't be possible to move Mrs Jones to a care home against her will, on the basis that she hasn't got capacity, simply because she can't remember how many times she's set fire to the frying pan,' Nicholas Paines QC, the law commissioner leading the project, told Solicitors Journal. 'You'll need to consider her wishes to stay in the home where she's lived for 40 years and analyse the overall risk. Maybe she's wandered out a couple of times but she didn't come to any harm, so it wouldn't be proportionate to force her into a care home.'

The proposals will also require professionals to document the process by which decisions under the Act are reached. 'Partly it's a discipline and partly if the case goes to court, there's a record of the steps taken,' said Paines.

A further amendment would extend the scope of the Act to cover all claims against care organisations. At present, under the Human Rights Act, claims may only be brought against state-funded organisations. 'This will fill the gap left by the HRA and will cover self-funded residents as well as those in private care homes,' Paines explained.

The commission's Mental Capacity and Deprivation of Liberty paper also tackles a wide range of issues in connection with the much-criticised deprivation of liberty safeguards (DoLS), a set of provisions introduced by the Mental Capacity Act in 2007 to comply with a European Court of Human Rights ruling.

Streamlined authorisation

Under the current framework, DoLS come into play after the decision to move a patient has been made by a local authority's social services department. But it is the care home or hospital that must apply for authorisation. This application is made to the same initial local authority, to a department responsible for the assessment of DoLS decisions.

The commission's draft bill proposes to rename DoLS 'liberty protection safeguards' and provides that authorisation should be applied for and issued before the decision to deprive somebody of their liberty. 'So, social services must think about why they are making that decision at that point, as part of a more streamlined and much shorter procedure,' said Paines. 'Issuing the authorisation at the same time as the arrangement decided upon will be more efficient. It will also make 'best interest' assessment much more sound.'

Further amendments will see the introduction of two new categories of particularly sensitive cases: where a person objects to being put in a care home under a DoLS scheme, and where a person is being deprived of liberty for the prevention of harm to others rather than to themselves (the number of such cases is lower, according to Paines).

In such cases, decisions will have to be approved by a mental capacity professional, a new qualification similar to mental health law professionals under the Mental Health Act. All decisions may be checked by an independent reviewer, but in these sensitive cases, mental capacity professionals will assess decisions afresh before social services are allowed to proceed.

Opt-in advocate

Additional safeguards will be provided by making it compulsory for patients to have an advocate. At present, patients are usually represented by an 'appropriate person' '“ often a family member or close friend. Advocates are only appointed on an opt-in basis. Only last year, the Court of Protection took the government to task over the issue, saying individuals lacking capacity should have legal representation as a matter of course.

The commission's proposal will make the appointment of an advocate compulsory unless the patient's representative opts out. The advocate role already exists under the MCA, but more are likely to be needed if the bill goes ahead.

In a move to keep up with modern living arrangements, the proposal will also bring so-called 'supported living' within the ambit of the MCA. This will cover blocks of flats, often purpose-built, where individuals are tenants rather than patients. At present, any DoLS cases in relation to such arrangements are dealt with in the Court of Protection.

Another significant change would make the renewal procedure more straightforward. The proposal would give the responsible body the power to extend the current maximum 12-month period without having to carry out a new assessment, if it is satisfied that the state of affairs is likely to continue and that the arrangement remains suitable.

'Senile dementia or severe learning disabilities are not conditions from which you recover, so this would simplify the process in these cases,' said Paines. In other cases, the responsible body will have to continue, as at present, with regular checks on the ground. If the initial assessment has concluded that the condition is perhaps temporary, then there would be an enhanced responsibility to review the arrangements. The patient's advocate or representative will continue to be able to request a review.

From Strasbourg to Westminster

The original Mental Capacity Act was the result of a project developed by Brenda Hale, now Baroness, when she was a law commissioner. In 2007, the Act was amended to take account of the European Court of Human Rights ruling in HL v UK. HL, an informal patient with severe learning difficulties, went through a period of serious agitation and self-harm, and could only be controlled by sedation. Although not in a locked ward, he was not, in practice, free to leave.

The House of Lords had found that HL had not been forcibly deprived of liberty under the Act, and that if he had been, he would have been able to rely on the common law remedy of necessity. The Strasbourg court found that this did not meet the requirement that deprivation of liberty could only lawfully take place by application of a procedure prescribed by law.

A House of Lords report in March 2014 into the workings of the Mental Capacity Act, including deprivation of liberty safeguards, found that DoLS were 'not fit for purpose'.

At the same time, the Cheshire West case '“ in which Lady Hale sat as a judge '“ lowered the threshold of deprivation of liberty. Someone under supervision but not free to come and go was to be regarded as deprived of their liberty.

Government estimates at the time were that there would be few cases falling under the new DoLS rules. 'This was wrong from the outset,' said Paines.

By 2016, the number of DoLS applications had rocketed to nearly 200,000, with local authorities unable to process applications within the 21-day time limit.

Jean-Yves Gilg is editor in chief at Solicitors Journal

jean-yves.gilg@solicitorsjournal.co.uk | @jeanyvesgilg