Practitioners Experience and implications for Capacity Legislation in the North and South of Ireland

Paula ScullySolicitor

ex Public Guardian (Australia) and ex Chairperson Guardianship Board Hong Kong)paula.scully@derbyshire.gov.uk

Overview• Examine and make recommendations for ROI Assisted Decision

Making (Capacity) Bill (ADMCB) and Northern Ireland Mental Capacity Bill (NIMCB)

• Will focus on Deprivation of Liberty (DOL), proposed authorisation processes and safeguards and roles of proposed agencies.

• Separate handout on additional recommendations not included in Powerpoint due to time constraints

• Apologies for errors as working in England not Ireland!• “RPs” -describes the persons subject to both Bills - not intended

to disrespect people with disabilities/ capacity issues but for time sake only!

• Speaking personally and not on behalf of my employer

ADMCB- general comments

• Bill has lots of positives – abolition of wards of court system, setting out guiding principles, functional capacity, supported decision making through a range of roles e.g co decision making assistant, Court appointed representatives and the Public Guardian

• Some recommendations on the need for advocacy services, detention/DOL processes, systems, transitional issues – see also other handout

• Capacity assessments should be done by not only doctors but by nurses, social workers, psychologists, other health professionals

ADMC Bill PG functions

• Supervise DM assistants, Co- DMs, attorneys, DM Representatives (DMRs) / receive their reports

• Appoint special /general visitors/ court friends• Nominate DMRs from a panel as last resort• Maintain registers of all DM agreements/ EPAs• Receive complaints re DMakers & act on them• Create Codes of Practice etc

Protection against abuse ROI

• A16 UNCRPD- States Parties shall take all appropriate legislative and other measures to protect persons with disabilities (PWDs) from exploitation, violence and abuse

• ROI- ADMC Bill –PG no power to investigate abuse /neglect

• Is that for the Health Information & Quality Authority (HIQA) or/and HSE? Or should OPG become Office of Public Advocate to expand PG powers to cover A16?

Protection against abuse

• What structures will protect RPs against abuse and exploitation?

• England – OPG can investigate allegations of abuse against deputies or attorneys– in reality, focus on financial abuse.

• 2013/4 – OPG received 2,200 new safeguarding referrals. 628 new cases accepted for full investigation- 1406 sent to Police or Local Authority to deal with.

• If welfare attorney/welfare deputy suspected of abuse, expectation that Local Authority would take court action rather than PG

Visitors & Advocates• English OPG visitors conducted 10,589 visits in 2013/4 to support

supervision and investigations activity • Visitor’s role under ADMCB to visit and take records too limited• Duty under ROI Citizens Information Act to provide advocacy for PWDs

- National Advocacy Service• Bill should provide for Independent Decision Making Advocates

(IDMAs) to support /advocate for RPs in making significant decisions when interfacing with professionals, family or those charged with roles to assist/represent RP where issues /concerns raised, such as;

• Decisions on future accommodation and care packages, refusal of serious physical treatment, safeguarding issues and to redress power imbalances when RP is caught up in a dispute with people in those other roles.

Advocates

• Who will have power to appoint advocates? And at whose request? And where should advocacy service be located? PG / Court/ HSE/ MHC/HIQA

• English Care Act- advocates for those with substantial difficulty in being involved/engaged in community care assessments, care / support planning and reviews

• Independent Mental Capacity Advocates have championed supported decision making and pushed professionals to really engage with RPs.

• Advocates help to embed better practice amongst professionals; reduce power imbalances for RPs.

A14 UNCRPD – Deprivation of liberty

• States Parties shall ensure that PWDs, on an equal basis with others:

• Enjoy the right to liberty and security of person;• Are not deprived of their liberty unlawfully or arbitrarily, and that

any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a DOL.

• 2. States Parties shall ensure that if PWDs are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention, including by the provision of reasonable accommodation.

DOLS-Deprivation of Liberty Safeguards

• Cannot be placed under DOLs unless have a mental disorder & incapacity to consent to care and treatment in circumstances amounting to DOL

• Must be in RP’s best interests• Right to review by Supervisory Body or appeal to

Court of Protection, non means tested legal aid• COP can authorise DOL for those not in hospital or

care home e.g. Supported living placements

DOL Safeguards Processes• Managing Authority of hospital, care home can issue urgent DOL

authorisation- 7 calendar days • Apply for standard authorisation to Local Authority Supervisory Body • Best Interests Assessor- age, best interests, no refusal by attorney,

capacity assessments• Mental Health Assessor- mental health, eligibility for DOLs v MHA,

capacity assessments• Supervisory Body – Local Authority can extend urgent for max 7 days;

grant authorisation max 12ms• Authorisers – senior LA staff, quasi judicial role (Neary judgment)• Independent Mental Capacity Advocate for RP with no family• Relevant Person’s Representative, family or paid after authorisation.

DOLS RP’s Representative & BIA

• RPR -critical role to support RP • Paid RPRs more likely to challenge

authorisation in the Court of Protection• BIAs –though employed by LA are human rights

focused, challenge abuse, restrictive practices, give RP/family a voice

• BIAs recommend conditions to reduce restrictive practices; resolve disputes with RP & family

Interface MHA and informal detention /DOLs

• Informal patients in psychiatric wards, no right to review by Tribunal

• Since SC Cheshire West decision, cohort of informal incapacitated patients shrinking- detained under MHA or under DOLS

• Schedule 1A interface DOLs/MHA a disaster• DOLS processes too complex, Care Homes not

completing forms correctly, not embedded yet

Case example MHA/MCA• Woman aged 80, confused, self neglecting, dementia, sectioned for

assessment s2 MHA; after 28 days becomes a “voluntary “patient. No detailed capacity assessment completed as to whether she had capacity to consent to treatment and to stay.

• Under continuous supervision and not free to leave so placed under DOLS Authorisation

• Psychiatrist wants Social Care to move her to care home. Woman wants to go home but concerns whether she will accept care package. Adult Care willing to trial her at home. Independent Mental Capacity Advocate appointed as decision on residence required. IMCA pushes for a trial at home.

• If not agreed, Social Care may move her to care home, but will need DOLS authorisation at the care home and will have to apply to Court to decide where she will live permanently

A PCT v LDV [2013] EWHC 272 (Fam) –capacity for DOL

• Has the Assessor considered the concrete situation & RP’s understanding of their situation?

• RP must understand some information about the context in which the DOL is being imposed, i.e. the care /treatment regime, level of supervision, restraint, medication.

Restraint ROI Bill

• S27 impose limit on decision-making representatives (DMRs) concerning restraint.

• DMR is considered to do more than restrain a RP if deprives RP of liberty as per A 5 of ECHR.

• This shall not prejudice S69 of MHA (seclusion/ bodily restraint restrictions)

• S41 similar power for attorney for welfare decisions under EPA

• S53 similar rules for informal decision maker• No reference to seclusion or chemical restraint

Part 9 Detention-related safeguards ROI

• Section 67 ADMCB- Where an issue arises in an application to the Court as to whether a person who lacks capacity is suffering from a mental disorder, (as defined by MHA) the procedures under MHA 2001 shall be followed as respects any proposal to detain i.e. detain within ECHR.

• Not restricted to wards of court • Lacks capacity for what- to consent to MH

detention? Note narrow MHA definition

Definition of Mental Disorder under MHA

• means mental illness, severe dementia or significant intellectual disability where—

• because of that condition, there is a serious likelihood of RP causing immediate and serious harm to him/herself or to others or

• because of its severity, P’s judgment is so impaired that failure to admit to an approved centre would be likely to lead to a serious deterioration or would prevent appropriate treatment and it would likely benefit P.

Implications of s67

• “The MHA procedures will be followed” – will the Judge order RP to be detained or transfer RP to the Mental Health Commission so that a Tribunal can be organised?

• Difficulty in finalising ADMCB interface with MHA until review of MHA 2001 completed – will MHA be amended or use ADMCB to amend MHA re RPs without DM capacity?

Review of detention of wards

• Section 68 -review of Wardship orders detaining RP in an MHA approved centre.

• If satisfied that RP still suffering from a MHA mental disorder, Wardship Court may order continued detention in the approved detention centre or an alternative centre for 3 months.

• 2nd or subsequent review - order for 6 months. Before review, obtain clinical director’s views, and from treating and independent psychiatrists

• Only discharged from detention if no longer suffering from a (MHA defined) mental disorder

Review of detention of wards ROI- 2

• S69 similar powers of review for RPs in an institution other than an approved centre

• Institution- not defined but s56(6) refers to a hospital or other institution for the care or treatment of mentally ill or intellectually disabled persons and any public or private institution for the care of elderly or infirm persons

• S67 MHA—(1) Subject to sections 12/22 a person suffering from a mental disorder shall not be detained in any place other than an approved centre (but wards can be under Bill!).

Review of detention of wards -3

• Why cannot the Court refer these cases to the Tribunal for review of detention?

• Does not say RP can seek review or that psychiatrist should initiate review if RP no longer suffering from mental disorder

• No reference to obtaining RP’s views / preferences directly or via independent mental health advocate or social work or psychology reports

Detention and wards of court –recommendations

• Wards under wardship detention orders should be prioritised for Court review on Bill’s implementation.

• MHA advocates to work with wards to ascertain preferences• Create a panel of “DOL assessors” (similar to Best Interests

Assessors) to review detained wards pre implementation, assess capacity on a range of decisions, ready to provide report to Court so not just a medical model though still need Dr’s report- A5

• Panel to include doctors, nurses, social workers independent of service provider,

• Access to legal advice/ aid/ Court friend

What about those under DOL but not wardship?

• If not under s67 or MHA criteria, then no DOL procedures• For A5 ECHR compliance, need safeguards re DOL in

congregated housing; residential centres, for voluntary MH patients etc

• Who will assess capacity for DOL? • Suggest Panel system for authorisation - who will create and

supervise Panel? Right of appeal to Tribunal or Court?• Where will Panel sit -within HSE, OPG, MHC?• Which agency will oversee authorisations , investigate RPs

under DOL in care homes/ community placements, issue reports on restraint/ DOL– an expanded MHC or HIQA?

Forensic risks

• MCA /DOLS not designed for risk of harm by RP to others unlike MHA

• Local authorities fund 24: 7 packages for sex offenders with Intellectual Disability to prevent offending- is this preventative detention unlawful and not to be under DOLs ?

• But see Y County Council v ZZ [2012] MHLO 179• J Council v GU & Ors [2012] EWHC 3531

Challenges to implementation ADMCB

• Resources- require resourced OPG, Advocacy service and Courts, Bill will be undermined in implementation

• Professionals need training to change practice, to let go of best interests paradigm and accede to RP’s preferences

• Deal with concerns about professional liability and impact on duty of care- what will the Coroner say?

• Education of RPs and carers on understanding complex mechanisms under Bill and how to implement them

• Difficulties in persuading organisations that DM capacity is a continuum not black and white

Key provisions NI Mental Capacity Bill

• Capacity- diagnostic and functional tests- over 16• Need an impairment to intervene compulsorily• No compulsory MH treatment for those with

capacity to refuse• Best interests – less restrictive principle• If has capacity, RP nominates Nominated Person

(NP), if not, their carer -not a decision maker but can object to serious interventions, compulsory MH treatment & certain physical treatments

Detention/deprivation of liberty grounds

• DOL may be required in a hospital/ care home where care or treatment available; or

• When being taken, transferred or returned there (no need for authorisation if emergency)

• For compulsory treatment with serious consequences

• For conditions imposed during approved absence in community

NI Bill - authorisations

• Need authorisation for DOL, attendance for treatment/ residence requirements (similar to MH Guardianship) or compulsory serious treatment where NP objects and P resists or a DOL occurs

• Independent advocate for those without capacity or if NM objects to intervention

• If advocate objects, Trust decide interventions but reviewed by Tribunal

Authorisation for DOL

• HSC panel may only authorise a DOL in circumstances in which a failure to do would create a risk of serious harm to P or of serious physical harm to others; and

• DOL is proportionate to likelihood/ seriousness of harm; P lacks capacity and in his/her best interests

• Trust Panel must have report, care plan & P’s views• May have oral hearing but to issue in 7 working days• Short term detention allowed for physical/ mental

examination of P without capacity only if a report including medical report completed by approved Social Worker

Authorisation for DOL

• Interim authorisation 28 days• Panel issues authorisation for up to 6 months,

then for a year• Appeals against authorisations go to Review

Tribunal (similar to MHRT) -if RP does not ask for review, automatic review after a while

• Criminal offence if DOL unlawful • Placements other than care home /hospital-

need High Court DOL order

Comments on NI Bill

• No compulsory MH treatment for those with capacity to refuse - will challenge professionals concerned about extent of their duty of care

• Create assessments tools to correctly assess capacity to refuse mental health treatment, because of the public’s perceived risk of harm to others and to patient

• Extend authorisation procedures for DOL in community placements rather than use Court

• Welcome amendments to criminal justice laws to address disproportionate no. of people with disabilities caught up in that system.

House of Lords Report-lessons

• Simplify DOLs law and processes • Clarify interface between MHA and DOLs• Social Care risk averse; NHS paternalistic• Move from protection to empowerment• Insufficient respect for RP’s wishes • Least restrictive options not sufficiently explored• Create effective oversight of Supervisory Bodies

Conclusion

• Do not over estimate time required for changing cultures & embedding new practices

• Consider which agency will champion implementation, not duplicating HIQA or MHC (or RQIA) or perhaps an Office of Public Advocate?

• Need resources to meet expectations of RPs, their families and professionals

• Need courage and compassion to drive change, work collaboratively & tackle abuse of PWDs

Thank you!

• Any Questions?