Best interests and mental capacity
Nicholas Endean | 04.05.2018
06.10.2017 Nicholas Endean
Recently the Mental Capacity Act (“MCA”) 2005 reached its 10 year anniversary. The question is what has changed since the Acts introduction and has the legislation been effective?
More than 12 years ago the European Court of Human Rights gave its landmark judgement in HL v United Kingdom which identified what became known as the “Bournewood gap”. The problem was persons who lacked the capacity to consent to treatment for mental health issues were being deprived of their liberty under the common law principle of necessity. This deprivation contravened their right to liberty under Article 5 of the European Convention on Human Rights.
As a result of the problem identified in the HL judgement, the Mental Health Act 2007 added a number of sections and two schedules to the Mental Capacity Act 2005 which become known as the Deprivation of Liberty Safeguards (or “DOLS”), The purpose of which was to ensure persons were not deprived of their liberty without authorisation.
One of the largest criticisms of the MCA 2005 since it became law has been the introduction of DOLS. The bureaucratic nature of the DOLS authorisation system appeared to be the focus of the Law Commission’s review of the MCA 2005 published in March of this year.
In simple terms, DOLS provide for the authorisation of deprivations of liberty by an administrative process and also act as a means to challenge any such deprivation in court.
A DOLS is required to deprive anyone of their liberty in order to care for them in a hospital or care home, where the subject of the DOLS (a person, referred to as “P”) lacks the capacity to consent to such an arrangement.
A DOLS is not applicable to deprivations of liberty in supported living, shared lives or private or domestic settings. Deprivation in these settings requires authorisation to be obtained from the Court of Protection.
DOLS was and is the first clear, legislative protection for ensuring persons are not deprived of their liberty without good reason.
DOLS has attracted a number of criticisms. Firstly, particularly in the early stages of their introduction, there has been and still is a wide misunderstanding of when a DOLS should be used, which has often resulted in individuals being left without the safeguards Parliament intended. Secondly, the Supreme Court’s decision in Cheshire West which significantly widened the definition of liberty in the health and social care context has resulted in a huge increase in the number of persons who by law are being deprived of their liberty and therefore require a DOLS safeguard to be implemented. Thirdly, the impact of Cheshire West, combined with the bureaucratic nature of the DOLS authorisation system has resulted in a huge backlog of authorisations and a social care system which tinkers on the brink of disaster.
The Law Commission believes that its proposed system of “Liberty Protection Safeguards” will address all of these problems, and ultimately result in a streamlined, effective DOLS process which upholds the fundamental principles of the MCA 2005.
In reality, such a system is only likely to lead to an improvement if our government recognises that in order to uphold the MCA 2005 Section 1 principles, and provide adequate liberty safeguarding for vulnerable persons, greater public funding is required to ensure social services have the resources required to deliver the DOLS system.
Although there has been widespread criticism of the DOLS system, and it seems likely the well-recognised problems will continue until the advent of legislative and systemic reform, combined with a commitment by the government to invest additional public funding, the MCA 2005 has triggered what can only be described as a deep-rooted societal change in terms of both our perception and understanding of capacity.
We have moved towards a presumption of capacity unless there is evidence to suggest to the contrary (Where a person (“P”) is deemed to lack capacity, any decision made on P’s behalf must be in their best interests Section 3(1) sets out the factors which indicate when P is unable to make a decision themselves and the checklist in section 4(6) and (7) provides a clear list of what should be considered to enable a best interests decision to be made. Case law has provided additional tools such as the ‘balance sheet approach’ (Re A ) to enable reasoned decision making to take place.
All of this has sparked greater public awareness of both the importance of decision making which is respectful of what appears to be in P’s best interests and the need to plan for the future through the use of Lasting Powers of Attorney.
The MCA 2005 is not perfect and DOLS undoubtedly needs urgent systemic reform; however the significance of the societal evolution triggered by the Act cannot be underplayed. The MCA 2005 has played, and will continue to play, a vital role in the regulation of capacity and decision making on behalf of others for years to come.