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Schedule to be inserted as Schedule AA1 to the Mental Capacity Act 2005

Part of Mental Capacity (Amendment) Bill [Lords] – in a Public Bill Committee at 9:25 am on 22nd January 2019.

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Photo of Barbara Keeley Barbara Keeley Shadow Minister (Mental Health and Social Care) 9:25 am, 22nd January 2019

I beg to move amendment 46, in schedule 1, page 21, line 42, leave out sub-paragraphs (1) and (2), and insert—

“39 (1) The responsible body must take all reasonable steps to appoint an IMCA to represent and support the cared-for person if—

(a) sub-paragraph (2) provides that an IMCA should be appointed, and

(b) sub-paragraph (6) does not apply.

(2) An IMCA should be appointed if—

(a) the cared-for person makes a request to the supervisory body to instruct an IMCA;

(b) there is no appropriate person to represent and support the cared-for person;

(c) the cared-for person is 16 or 17 years old;

(d) there is an appropriate person to support and represent the cared-for person in relation to this Schedule and they make a request to the supervisory body to instruct an IMCA; or

(e) there is reason to believe that the appropriate person would be unwilling or unable to assist the person in understanding or exercising the relevant rights under this Schedule without the support of an IMCA.

(3) A person is not an appropriate person to represent and support the cared-for person unless the responsible body is satisfied that the person—

(a) is a suitable person to represent and support the cared-for person;

(b) consents to representing and supporting the cared-for person;

(c) will maintain contact with the cared-for person;

(d) will represent and support the cared-for person in matters relating to or connected with this Schedule; and

(e) is not engaged in providing care or treatment for the cared for person in a professional capacity.

(4) A person is not an appropriate person if there is reason to believe that the cared-for person does not wish, or would not wish, to be supported and represented by the proposed appropriate person.

(5) The ‘relevant rights’ under this Schedule include—

(a) rights to request a review by an Approved Mental Capacity Professional;

(b) rights to request a review under paragraph 35;

(c) rights to information about the authorisation, assessments and its effects;

(d) rights to apply to the Court of Protection under s21ZA.

(6) An IMCA should not be appointed if—

(a) there is reason to believe that the cared-for person does not wish to be supported by an IMCA; and

(b) there is reason to believe that the cared-for person does not wish to exercise rights to apply to the Court of Protection under s21ZA.

(7) The responsible body must keep under review whether an appropriate person is undertaking their functions. If the responsible body finds that the appropriate person no longer fulfils the required functions, the responsible body must appoint another appropriate person or IMCA.”

This amendment would amend the requirements for an IMCA to be appointed, so that advocacy is the default position. It also makes provision for appropriate persons to be appointed subject to certain conditions relating to how they discharge their role.

Throughout the proceedings on the Bill, we have talked about the rights of the cared-for person and the protection that must be put in place to prevent inappropriate deprivation of liberty. In reality, many people who have suffered under the Mental Capacity Act will not be able to act on those rights. Instead, they require support and assistance from somebody else. Without that support, there is a real chance their rights are or how to enact them.

Before we discuss the amendment in depth, I will give the Committee some examples of why advocacy is so important to a person subject to the Act. The first is the case of Mrs L, a 67-year-old woman with Korsakoff syndrome who was placed in a care home on a temporary basis following a hospital stay as this was the only place she could receive appropriate support in the short term. A decision was needed as to whether Mrs L was to remain at the current care home long term or whether efforts would be made to return her home. There was a possibility that Mrs L could return to her own home if her legs improved sufficiently. She seemed happy to be at the current care home, but she kept asking when she could go home. Professionals were inclined to recommend that Mrs L was kept in the care home in the long term.

Mrs L was given the support of an independent mental capacity advocate at this point. The IMCA worked to understand what was the least restrictive option available to support Mrs L. As part of that, the IMCA requested an reassessment of Mrs L’s capacity to make decisions on the matter, as she was clearly expressing a preference to return home. Without the intervention of an IMCA before a deprivation of liberty authorisation was applied for, Mrs L may have been kept in the care home against her wishes.

Let me give another example of the intrinsic value of advocacy. VoiceAbility provides advocacy services to countless vulnerable people across the country. Sam was referred to VoiceAbility’s advocacy service in 2017. Sam is 57 years old and has a diagnosis of Korsakoff disease. Sam was discharged from hospital in 2005 and placed in a long-stay specialist residential unit. Sam was known to have made several attempts to abscond and return home. Sam was described as unco-operative with care providers, and would choose to stay in bed sleeping for the best part of the day. Sam was known to express negative feelings about living in the unit and not being free to leave.

Sam’s mother and extended family struggled to maintain contact with Sam due to the location of the unit and the time involved in travelling. When the relevant person’s paid representative—the advocate—met Sam in 2017, it was evident that Sam had been objecting for some time and had felt isolated and unsupported. When the RPPR explained to Sam the right to challenge the ruling in the Court of Protection, Sam requested that the RPPR initiate such a challenge as soon as possible. During the process the RPPR represented Sam and maintained regular contact with the legal team managing the case. Although Sam’s family were supportive, they expressed concern to the RPPR and other professionals that if Sam were to leave the unit, a return to past negative lifestyles would be inevitable, placing Sam at risk. The family therefore felt unable to support the challenge in the courts.

In 2018, the Court of Protection decided that Sam could move from the residential unit. Sam was placed in supported accommodation and was reported to have settled in well. Sam now enjoys community activities, and is rekindling previous hobbies and interests. In addition, Sam no longer sleeps for long periods and engages well with the new care providers. The location of Sam’s new accommodation has meant that Sam’s mother and family can have more regular contact. The family told Sam’s advocate and legal representative how pleased they were with the outcome for Sam, stating that they did not think it possible. Such cases show that advocacy can deliver the kind of outcomes that we all want for cared-for people, and help them to regain confidence, independence and quality of life.

The Bill proposes a rather convoluted system for deciding whether an advocate should be appointed. I hope that colleagues have had time to read the evidence submitted to the Committee by Lucy Series. Lucy is a lecturer in law at Cardiff University and is widely held to be an expert on the Mental Capacity Act 2005. Page 15 of her evidence includes a helpful guide to the system that the Bill proposes for assigning advocates, and the flowchart shows that the proposed system is complex and difficult to navigate. A number of different caveats must be worked towards, with the potential for applying a best interest test to be used at various stages. If Members have not had the chance to see the flowchart —I know we are not supposed to use visual aids in Committee—it makes it easy to see that the proposed system is complicated, and I suggest that they take a look.

The best interest test has been particularly opposed by stakeholders. At a recent stakeholder roundtable on the Bill, almost every organisation that attended expressed deep concerns about the provision. A best interest test should play no part in access to those essential safeguards, as that would interfere with a person’s right of appeal and compromise that crucial safeguard against the powers given to health and social care professionals under the Mental Capacity Act 2005.

Our amendment proposes significant changes to the system and seeks to remove some of the issues with the Bill, while maintaining the parts that work. It is important to discuss some of those important provisions. The version of paragraph 39(2) proposed in the amendment lays out the different circumstances in which an independent mental capacity advocate should be appointed, and only one of those conditions needs to be met for such an appointment. The cumulative impact of those conditions means that advocacy should be the default position. It simplifies the system proposed in the Bill, and ensures that people are not denied advocacy based on a best interest test.

Proposed new sub-paragraph (2)(a) provides an unqualified right to request an advocate. Regardless of all other considerations, if the cared-for person wants an advocate, they will get one. Unlike in the Bill, that would be true regardless of a person’s capacity. It is a move back towards the safeguards contained in the Mental Capacity Act. Under the deprivation of liberty safeguards, cared-for people have an unrestricted right to request that they be supported by an advocate. I cannot understand why the Government have not simply reapplied the current provision to the Bill, as we seek to do.

Proposed sub-paragraph (2)(b) would ensure that an IMCA is appointed in all cases where there is not an appropriate person to support the cared-for person. In the Bill, that provision is conditional on a best interest test. The Opposition feel that that is far too broad. When read in conjunction with sub-paragraph (6), this would ensure that the only cases where a cared-for person had neither an appropriate person nor an advocate to represent them were where they did not want such representation. We cannot see why it should ever be in somebody’s best interest not to have advocacy available. We recognise, as the Minister in the Lords has said, that there may be cases where a person does not want advocacy, but it should not be in the power of the responsible body to decide whether an advocate is appropriate. That should be a decision for the cared-for person or those who are supporting them.

Proposed sub-paragraph (2)(c) would require an advocate to be appointed in all cases where the cared-for person is 16 or 17 years old. Earlier in the Committee’s deliberations, I spoke about the need for greater protections to be put in place where 16 and 17-year-olds are deprived of their liberty under the Mental Capacity Act. The reason for requiring an IMCA is bound up with that: 16 or 17-year-olds may have an appropriate person or persons to support them in the form of their parents. We have also discussed how parents can find it hard to stand up to authority, even when it is what their child wants and needs. We should not assume that they will all be able to carry out that role robustly enough. As we heard in the case of S, which I mentioned in a previous sitting of the Committee, parents do not always agree with their children what the best course of action should be. In the Government’s Bill, it seems likely that almost no 16 or 17-year-olds would have access to an IMCA unless their parents requested it. That is clearly unacceptable.

Proposed sub-paragraph (2)(d) simply seeks to replicate the provision in the Bill that an appropriate person can request the support of an IMCA. As I said earlier, that would be particularly important in cases where the right to appeal to the courts may be engaged. An appropriate person is unlikely to be an expert in mental capacity law or have the expertise to take a case to court without an IMCA’s involvement.

Proposed sub-paragraph (2)(e) relates to what happens when there is an appropriate person, but they are either unable or unwilling to assist the cared-for person in understanding and exercising their rights. We should not allow a cared-for person to be deprived of their rights because an appropriate person cannot assist them properly. In such cases, it seems the best course of action is to appoint an IMCA to support them in addition to the appropriate person.

Proposed sub-paragraph (7) sets out an obligation on the responsible body to monitor how an appropriate person carries out their role and to appoint an IMCA to support them if needed. That means an appropriate person will not be left alone if they do not have the time or expertise to advocate for the cared-for person to the best of their abilities. An example of where that might be useful is in maintaining contact with the cared-for person—a crucial but possibly time-consuming task. This is an important provision, as is demonstrated by a case study that was supplied to me by POhWER, an organisation that provides advocates to people who have no one else to support them.