Law Commission: Mental Capacity and Deprivation of

Liberty – A Consultation PaperThis response to the Law Commission’s consultation on Mental Capacity and Deprivation of Liberty (CP 222) is by Dr Lucy Series. I am a Research Associate at the Centre for Health and Social Care Law at Cardiff University. My research interests include the Mental Capacity Act 2005 (MCA) and the deprivation of liberty safeguards (DoLS), adult social care law and the UN Convention on the Rights of Persons with Disabilities (CRPD). I am currently working with Professor Phil Fennell, Professor Luke Clements and Dr Julie Doughty on a project funded by the Nuffield Foundation about welfare proceedings in the Court of Protection (CoP). I have previously worked at the Centre for Disability Law and Policy on a range of projects relating to legal capacity, access to justice and the UN CRPD. My doctoral thesis examined the MCA and the DoLS from the perspective of adults with intellectual disabilities. I have been a member of the Care Quality Commission’s advisory group on the DoLS since 2010, and have recently been appointed to the Law Society’s Mental Health and Disability Committee. The views expressed in this consultation response remain my own, however, and may not reflect those of my colleagues.

The consultation by the Law Commission is very welcome. I share the House of Lords Committee on the MCA’s concerns about the DoLS, and hope that any future system of safeguards can improve upon the key problems highlighted by the House of Lords Committee and the Commission. Yet the Commission faces an extremely challenging task: to come up with a system of safeguards that satisfies the requirements of Article 5 ECHR and delivers protection for other key rights across a very diverse range of settings and circumstances. Even before the task is begun, this is likely to involve an unprecedented level of complexity – to cope with the variation in settings and circumstances, resources – to cope with the scale of the task, and controversy – because of the already existing wide range of views on the benefits (or disbenefits) of procedural safeguards under the MCA. The ruling of the Supreme Court in P v Cheshire West and Chester Council and another; P and Q v Surrey County Council1 is itself controversial, and this controversy is likely to impact upon how the Law Commission’s proposals are received.

The Law Commission’s proposals are very wide ranging, touching upon many key areas of policy. Unfortunately it has not been possible to respond to all the issues raised: in my response I have chosen to focus on three issues:

1. The safeguards under Article 5(4) of the European Convention on Human Rights (ECHR) available to individuals who are subject to restrictive care;

2. The proposals relating to supported decision-making and best interests, and the United Nations Convention on the Rights of Persons with Disabilities (CRPD);

3. The regulation of the proposed framework.

1 [2014] UKSC 19

1. Article 5(4) ECHR safeguardsEveryone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful

Article 5(4) ECHR

Problems with the existing frameworkAs the Law Commission has highlighted, there are significant problems with the appeal mechanism under the current DoLS framework. The system was never designed to hear appeals in any significant volume: the DoLS impact assessment anticipated that only 2.5% of authorisations would result in an appeal.2 This low anticipated rate of appeal is hard to reconcile with the government’s interpretation of deprivation of liberty in its impact assessment as ‘so extreme that only a relatively small number of individuals might be detained’3, including ‘excessive limitations on freedom of movement within the facility, unreasonable controls over timing of visits from family or friends or barring family and friends from taking the person out for social purposes or refusing a request from carers for the person to be discharged to their care’4.

By 2013-14 the actual appeal rate has not exceeded the government’s low prediction of 2.5%.5 This is surprising when one considers that prior to the Supreme Court’s decision in Cheshire West the leading Court of Appeal authorities on the meaning of deprivation of liberty were largely based on whether or not the person was objecting to their confinement6, and whether or not ‘a person has somewhere else to go and wants to live there but is prevented from doing so by a coercive exercise of public authority’.7 Under such circumstances one would have anticipated that a large proportion of detainees – or others acting upon their behalf – would have challenged the authorisations in court. It is a near certainty that large numbers of people who are deprived of their liberty under the DoLS are unable to exercise their right of appeal when it would be reasonable for them to do so, that others are failing to do so on their behalf, and that therefore their Article 5(4) rights are being violated.

In addition to concerns about the accessibility of the appeal mechanism under DoLS, there are also concerns about cost and delay in CoP DoLS proceedings, and the extent to which they facilitate the participation of the relevant person. Were the appeal mechanism under the DoLS to function as it should, it seems quite likely the CoP and the wider system of the DoLS could not cope with the number of appeals.

The Law Commission’s proposals on appealsThe Law Commission has proposed that individuals who are subject to the restrictive care scheme – including, but not limited to, those who are deprived of their liberty in the meaning of Article 5 ECHR – should have the right to challenge their care and treatment arrangements before a judicial body.

2 Department of Health (2007) Mental Health Bill Regulatory Impact Assessment Revised Version June 2007, London, paragraph 85.3 Paragraph 844 Paragraph 825 Care Quality Commission (2014) Monitoring the use of the Mental Capacity Act Deprivation of Liberty Safeguards in 2012/13, London, p31; Series, L., Mercer, A., Walbridge, A., Mobbs, K., Fennell, P., Doughty, J. and Clements, L. (2015) Use of the Court of Protection’s welfare jurisdiction by supervisory bodies in England and Wales, Cardiff University School of Law and Politics, p15.6 P & Q v Surrey County Council [2011] EWCA Civ 190, paragraphs 25-67 Cheshire West and Chester Council v P [2011] EWCA Civ 1257, paragraph 58

The Commission has provisionally concluded that a tribunal system should be established to review cases under the restrictive care and treatment scheme, with a further right to appeal against a tribunal decision either to the Court of Protection or an Upper Tribunal where the issues raised are points of law or are of particular significance to the person. The Commission seeks views on whether paper based reviews – such as those introduced by the Mental Health Tribunals for automatic referrals of CTO cases - would be appropriate. Views are also sought on whether in ‘relatively straightforward cases’ it would be possible to have single member tribunals, with the likelihood being that the single member would be a lawyer – possibility with the assistance of an independent medical expert’s report. The Commission considers that there should be a system of automatic referrals for an appeal and seeks views on what period of time should elapse before a local authority is required to refer a case for appeal, if no application has already been made. The Commission also seeks views on whether all significant welfare issues where there is a major disagreement should be required to be decided by a court or tribunal.

Automatic referrals to the tribunalThe Commission has proposed that there should be an automatic reference to the court or tribunal, by the local authority, if an application has not been made within a particular timeframe. Because of the serious problems with the application and appeal mechanism under the DoLS, an automatic referral mechanism may appear an attractive solution to the problem of people being unable to exercise their Article 5(4) rights. However, automatic referrals also have significant disadvantages.

CostAs the Commission recognises in the impact assessment, the tribunal process makes up a significant amount of the overall costs of the proposals for protective care.8 The majority of this cost would fall upon the public purse – particularly public authorities in participating in tribunal proceedings, and the legal aid budget. Without a significant about turn in the government’s pursuit of austerity policies this represents a significant diversion of resources from already highly strained health and social care, and legal aid budgets. This is unlikely to be welcomed by those working in these sectors, or reliant upon these services.

The costs of the tribunal will also fall upon private individuals. The Commission appears to anticipate that only 25% of those who are represented before the tribunal will receive legal aid (in contrast with 100% of people who are subject to DoLS and are eligible for legal aid for s21A appeals). This means that a large number of people in receipt of care, and their families, will have to fund their own legal representation for tribunal hearings. Presumably the rationing mechanism would be through financial means testing. This means that some people may be entitled to legal aid for appeals in cases where nobody is objecting to, or concerned about, the individual’s care. It also means that some individuals may not be entitled to legal aid in cases where they or their families very much do object to their care arrangements. This may be a deterrent against seeking legal representation in proceedings which are, nevertheless, of great importance to them. It may present practice problems for those who are subject to DoLS, are not financially entitled to legal aid and may be considered to lack the mental capacity to make decisions about their finances. In these circumstances, satellite issues may arise about whether or not it is in their ‘best interests’ to fund legal representation for appeals. There may be conflicts of interest in making decisions about the funding of legal representation for those responsible for managing their financial affairs if they are

8 I estimate this to be 75% of the overall costs, based on the following figures provided in the impact assessment: £231,105,127 to local authorities participating in tribunals; £17,3439 cost to local authorities and NHS for tribunals under hospital scheme; £32,530,071 cost to local authorities for tribunal review in domestic settings; and £135,968,049 cost in legal aid and to the parties of tribunal.

also implicated in arranging the care which is under challenge (which they are likely to be, if they are self-funding for care). It is possible that the discrepancies between the availability for legal aid for Article 5(4) appeals under DoLS and the Mental Health Act 1983 may be open to legal challenge as a form of discrimination under Article 14 ECHR. This additional drain on the resources of people in receipt of care – who will primarily be older adults and disabled people – will compound the financial disadvantages already experienced by these groups. Once large numbers of people find themselves having to fund legal representation for tribunals on top of care costs, it is likely to undermine public support for the scheme as a whole.

In short, I feel that the disadvantages of having to ration legal aid for appeals are so great they could undermine support for the scheme as a whole, and it would be preferable to find a more appropriate mechanism for ensuring that appeals are easily accessible for those who would benefit from them, rather than an automatic referral system which will incur significant costs for the public and private purse in circumstances where the benefits may be less clear.

The burden on the relevant person and familiesFor most people legal proceedings of any kind can be very stressful and intimidating. In addition to the emotional stresses and strains of court or tribunal proceedings, participating in legal proceedings can make significant demands on people’s time in dealing with the necessary correspondence and bureaucracy surrounding a court or tribunal hearing (or even a paper based review). For those who are not concerned about the care arrangements, an appeal is unlikely to be experienced as a helpful safeguard but rather as another state body and bureaucratic process that needs to be negotiated, without any obvious reward.

In our research into transparency in the CoP, we have been told by practising lawyers that families often find the court proceedings themselves a tremendous intrusion into their privacy – even if the proceedings are entirely held in private.9 This may be especially true where the court or tribunal is scrutinising domestic care arrangements or privately arranged care; families may even feel that it is they – not public authorities – that the tribunal is holding to account.

The case for automatic referrals is unclearWhere the relevant person or their family is dissatisfied with the care arrangements, or where others have concerns about their care, the stress of the proceedings and intrusions into privacy may be outweighed by the benefits achieved through judicial scrutiny of their care and the possibility of court orders bringing about a change in the situation. However, where nobody is objecting and no family or independent professionals have raised concerns about the person’s care, it is far less clear what benefit the relevant person and their family would gain from the tribunal process. To justify the demand on public and private resources of routine tribunal hearings, there would need to be a stronger and clearer case for the benefit in circumstances where there is no dispute. The Commission seems to tacitly acknowledge this in its impact assessment, when it states that ‘it is difficult to estimate the size of the cohort that would be denied a review under this option [of no automatic review] and would benefit from such a review’.10

One possible benefit of a judicial review in circumstances where nobody is objecting or has raised concerns is that the tribunal, or lawyers for the parties, may identify some details in the assessments or care plan which give rise to cause for concern. However, there is as yet limited evidence to suggest that a court or tribunal can fulfil this function any more effectively than the layers of

9 Series, L., Fennell, P., Doughty, J. and Clements, L. (2015) Transparency in the Court of Protection: Report on a Roundtable, Cardiff University School of Law and Politics.10 Law Commission (2015) Impact Assessment: Mental Capacity and Detention, (LAWCOM0044) London. p36

independent scrutiny that will already be built into the process – including Approve Mental Capacity Professionals (AMCPs), independent advocates and (possibly) representatives and regulators. Another commonly cited advantage of routine tribunals is that professionals will take greater care in their actions and decision making in the knowledge that they will be independently scrutinised, yet adequate regulatory scrutiny (discussed below) of professional practice could fulfil a similar purpose for far less cost.

Moreover, if P themselves is not objecting, then the danger that a capacitous choice is being overridden is reduced (as ex hypothesi they are assenting to the arrangements), as is the danger that the arrangements are not in their best interests, since there is a strong and growing emphasis on the person’s own wishes and feelings.11 I discuss in further detail below how these risks might be addressed through clearer duties on AMCPs, advocates and others to raise concerns and refer them to a tribunal.

TimingAlthough an automatic referral to a tribunal may guarantee that those who are subject to restrictive care for longer periods of time do eventually receive judicial scrutiny, there are no guarantees in a fixed periodic review system that this will ensure judicial scrutiny is received at the appropriate time to provide an effective safeguard for Article 5 and 8 rights. For example, an automatic referral after six months – as is the case for those detained under s3 Mental Health Act 1983 – would come too late for many people in social care settings if the purpose of the safeguard is to ensure they could be returned home where possible. By that time, their condition may well have deteriorated too much, or their home sold to pay for their care. A tribunal hearing would need to be much earlier to provide an effective safeguard in these circumstances, yet earlier hearings would then increase the number of referrals overall as it would affect any who was under restrictive care for even a short period of time.

The tribunal appeal system needs to be responsive to the need for judicial review at the point in time where a dispute or concern arises. Prior to Cheshire West many, if not most, DoLS cases may have fallen into this category from the outset as the DoLS themselves were likely to be triggered by a dispute or objections of some kind. But following the Supreme Court’s judgment, a large proportion of cases falling within the scope of any replacement for DoLS will not involve any kind of active dispute.

Article 5(4) does not require an automatic referralArticle 5(4) guarantees a right ‘to take proceedings’ to determine the lawfulness of detention. Article 5(4) remedies must be ‘accessible to the person’.12 Strasbourg case law has consistently recognised that ‘special procedural safeguards’ may be required to protect this right for those unable to initiate proceedings on their own behalf.13 In MH v UK the European Court of Human Rights (ECtHR) recently considered what kind of procedural safeguards may be required ‘When a mental patient is not fully capable of acting for herself on account of her mental disabilities’.14 It was reluctant to dictate what form the ‘special procedural safeguards’ should take in such situations, and expressly

11 Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67, §45; Wye Valley NHS Trust v Mr B [2015] EWHC 60 (COP).12 MH v UK (App no 11577/06) [2013] ECHR §7613 Winterwerp v the Netherlands (App no 6301/73) [1979] 2 EHRR 387, §39; Megyeri v Germany (App no 13770/88) [1992] ECHR 49; (1993) 15 EHRR 584, §22; Magalhaes Pereira v Portugal (App no 44872/98) [2002] ECHR 161, §56; Storck v Germany (App no 61603/00) (2005) 43 EHRR 96, §117; Stanev v Bulgaria (App no 36760/06) [2012] ECHR 46, §170; MH v UK, §77, 79, 93.14 §93

stated that ‘While automatic judicial review might be one means of providing the requisite safeguard, it is not necessarily the only means’.15 The court went on to say that:

… the compensatory safeguards to which the State might have recourse in order to remove the legal or practical obstacles barring such a person from being able to benefit from the procedural guarantee afforded by Article 5 § 4 may well include empowering or even requiring some other person or authority to act on the patient’s behalf in that regard.16

Thus an alternative to an automatic referral mechanism is ensuring that at least one person or authority is empowered or required to assist a person or act on their behalf in exercising their rights of appeal.

This raises the question of when a person should be assisted in bringing an appeal, and here the Strasbourg authorities are less clear. The ECtHR has found violations of Article 5(4) in situations where either the relevant person17, or those closely involved in their care and welfare18, were objecting to their detention and for some reason were unable to exercise their right of appeal. It has not, to the best of my knowledge, found a violation of Article 5(4) in circumstances where neither the detainee nor those close to them were objecting, and there was no appeal.

The ECtHR has held that remedies that depend upon the goodwill or initiative of a third party are not effective remedies19 and do not satisfy the requirements of Article 5(4) ECHR20 - even if those decisions are justified on the basis of the person’s prospects of success.21 A detainee is not required, as a precondition to enjoying the protection of Article 5(4), ‘to show that on the facts of his case he stands any particular chance of success in obtaining his release’.22 Thus, the obligation to assist a person in exercising their right of appeal, or to bring an appeal on their behalf, must not rest on their prospects of success and must not be discretionary. However, in MH v UK the ECtHR distinguished between a duty to act when certain requirements were met (in that case, when a request for a referral to the tribunal was received) and a discretionary power to act:

As concerns the legislative scheme at issue in the present case, the House of Lords pointed out that the Secretary of State was required under the Human Rights Act to exercise any power compatibly with the rights enjoyed by individuals under the Convention. This means that once a request is made for a referral, rather than enjoying a discretionary power to refer the case to the Tribunal, he is under a duty to do so if not to do so would involve an infringement of the patient’s rights under Article 5 § 4 of the Convention to obtain speedy judicial review of the detention. In such circumstances, the referral to a judicial body cannot be said to be dependent on the goodwill or initiative of the Secretary of State, but rather is a legal consequence flowing from his statutory obligation to act compatibly with the patient’s rights under Article 5 § 4 of the

15 §8216 §9317 e.g. Winterwerp v the Netherlands; Stanev v Bulgaria; DD v Lithuania; Kędzior v Poland.18 HL v United Kingdom (App no 45508/990) [2004] 40 EHRR 761; MH v UK.19 X and Y v Croatia (App no 5193/09) [2011] ECHR 1835, §64; Stanev v Bulgaria, §24620 D.D. v Lithuania (App no 13469/06) [2012] ECHR 254, §166; Shtukaturov v Russia (App no 44009/05) [2008] ECHR 223, §124; Stanev v Bulgaria, §174; Sýkora v The Czech Republic (App no 23419/07) [2012] ECHR 1960, §9; Sýkora v The Czech Republic (App no 23419/07) [2012] ECHR 1960, §92.21 Winterwerp v the Netherlands, §6422 Waite v The United Kingdom (App no 53236/99) (2003) 36 EHRR 54, [2002] ECHR 804§94

Convention. In this regard the present case can be distinguished from those of Stanev and Rakevich (cited above), where the third parties were not under any duty to intervene on the applicants’ behalf.23

Thus, it may be lawful under the ECHR to develop a scheme whereby one or more third parties are under a duty to assist a person in initiating proceedings or refer the case to the tribunal where certain clearly defined criteria are met.

Alternative criteria for a tribunal referralUnder the current DoLS scheme, a number of safeguards are in place that – presumably – were intended to offer the kinds of ‘special procedural safeguards’ required under Article 5(4) ECHR to assist a person in exercising or otherwise enjoying their right of appeal against detention, including the relevant person’s representative (RPR), independent mental capacity advocates IMCAs) and a referral to the CoP by the supervisory body itself. When one examines these safeguards in detail, one finds a confusing patchwork of rights and obligations to assist the relevant person in exercising rights of appeal; small wonder they have resulted in a very small volume of appeals under the DoLS.

The most recent statement of how these safeguards are supposed to interact can be found in AJ v A Local Authority24. In AJ Mr Justice Baker found that it is the responsibility of the RPR to maintain contact with the relevant person, and to support and represent them in matters connected with the Schedules – including making an application to the CoP in accordance with Article 5(4). According to Baker J, s140 of Schedule A1 requires the supervisory body to make an independent judgement as to whether the RPR proposed by the individual (if they have the capacity to do so), any donee or deputy (if they have one, and lack capacity) or recommended by the Best Interests Assessor (BIA) (If they lack capacity and have no donee or deputy) could fulfil these criteria, with particular regard to whether or not the proposed RPR may have a conflict of interest when it comes to challenging the detention if they themselves supported it or were implicated in arranging the care.25 Thus the role of RPR, at least as defined in AJ, is very different to that of the Nearest Relative (NR) under the Mental Health Act 1983. Whilst the NR has rights to object to detention (under s3 MHA) and to discharge a person, and may apply to the tribunal if prevented from exercising these, the MHA does not appear to expect that they must exercise these rights whenever the detained patient objects to their confinement. Much the opposite, an ‘unreasonable’ exercise of these rights may lead to their being displaced as NR – presumably even if the patient themselves objects. Conversely the DoLS system, at least as characterised under AJ, places families under a high level of responsibility to initiate legal proceedings in support of detainee’s Article 5(4) rights, or face termination as the RPR.

Section 39D of the MCA was inserted relatively late during the Parliamentary passage of the DoLS and unfortunately there is no record of the government’s thinking behind this provision. Nevertheless, s39D(5) in essence requires the supervisory body to identify situations where the relevant person and an unpaid RPR would require support in order to understand and exercise their rights of appeal and make an IMCA referral to provide them with information and support. S39D(8) MCA requires the IMCA to support the relevant person or the RPR to exercise their rights of appeal ‘if it appears to the advocate that P or R wishes to exercise that right’. If this mechanism worked as it were intended to it would mean that all individuals who would have difficulty exercising their right of appeal – and thus be in need to special procedural safeguards under Article 5(4) – would receive the requisite assistance. In reality, however, the s39D IMCA mechanism appears to be one of the

23 §9424 [2015] EWCOP 525 §135-7

most poorly performing elements of the DoLS. In an analysis of s39D IMCA referrals for my PhD research I found that during 2010-11 one third of supervisory bodies had not made a single s39D referral, even including those who had over 100 DoLS authorisations. Meanwhile, official data showed that IMCAs were rarely involved in assisting people to apply to the CoP.26 In AJ Mr Justice Baker emphasised that ‘an IMCA appointed under section 39 D must act with diligence and urgency to ensure that any challenge to an authorisation under schedule A 1 is brought before the court expeditiously. Failure to do so will lead to the evaporation of P's Article 5 rights.’ It appears that this was the case for a large proportion of people who either did not receive an IMCA referral when they should have done, or whose IMCA did not assist them in understanding and exercising rights of appeal in accordance with the clear requirements of s39D(8). Part of the difficulty may be that the MCA’s ‘best interests’ model infected the thinking of IMCAs – perhaps they did not realise that they were to assist a person in exercising rights of appeal even if the IMCA themselves did not believe it was in the person’s best interests to do so. Fortunately in AJ Mr Justice Baker made clear that ‘There is no place in Article 5(4) for a best interests decision about the exercise of that right since that would potentially prevent the involvement of the court. The decision to exercise a right to bring proceedings cannot be a best interests decision’.27 This was not made explicit in the DoLS Code of Practice nor other guidance that IMCAs may have relied upon in carrying out their role.

In London Borough of Hillingdon v Neary28 Mr Justice Peter Jackson held that ‘Significant welfare issues that cannot be resolved by discussion should be placed before the Court of Protection, where decisions can be taken as a matter of urgency where necessary.’29 Many may have assumed, therefore, that it was the responsibility of the supervisory body to refer disputes to the CoP where they arose – although, again, this obligation was never explicitly spelled out in the statute, the regulations or the Codes of Practice. In AJ Mr Justice Baker held that the responsibility of the supervisory body was as a ‘last resort’ responsibility for bringing the matter before the CoP ‘where a RPR and an IMCA have failed to take sufficient steps to challenge the authorisation’.30 Anecdotally, this has actually led to yet further delays in disputes reaching the CoP, as supervisory bodies refuse to make the application, citing AJ, on the basis that this is the responsibility of the RPR or an IMCA.

In summary, the DoLS place the responsibility for making an application to the CoP primarily upon the RPR – yet if this role is occupied by a family member, as was intended to be the case in most circumstances by the drafters of the DoLS – they will often be the least well equipped to take on this responsibility. Initiating legal proceedings of any kind is daunting, and requires a considerable degree of knowledge and confidence. As the Commission points out, many family members will feel too scared to rock the boat to exercise this right, or may – as in AJ’s case – actively support the detention and be reluctant to challenge it. The IMCA seems to bear secondary responsibility, yet IMCA’s are only resourced for relatively short term involvement in a case – not for the kind of long term monitoring and support the RPR is expected to provide. Meanwhile the supervisory body, who does (or should) have the expertise and knowledge of the DoLS, and who is the most obvious public authority under the Human Rights Act 1998 with positive obligations to uphold the relevant person’s rights, has been relegated to a referral mechanism of last resort.

I suggest that the DoLS model of special procedural safeguards was appropriate in the sense that it sought first to identify those in need of support to exercise their rights, and secondly to assist them 26 Series, L. (2013) The Mental Capacity Act 2005 and the Institutional Domination of People with Learning Disabilities, PhD thesis, University of Exeter. Available: http://hdl.handle.net/10871/994127 §7728 [2011] EWHC 1377 (COP)29 §33(1)30 §140

in exercising them in clearly defined circumstances (when it appeared that the person wishes to exercise that right). However, it fell short for a number of reasons. Firstly, placing the primarily responsibility for initiating legal proceedings on RPRs who were likely to be family members was unreasonable and unfair, and did not take into account the reality of their circumstances which made this an overly onerous burden. Family members should have a right to initiative appeals where they have concerns, but should not bear the primary responsibility for ensuring a person’s Article 5(4) rights are upheld. Meanwhile, IMCAs had a clear duty to assist in bringing court proceedings, but supervisory bodies were failing in their statutory duty to make referrals on a widespread basis, and IMCAs themselves did not appear to understand or act upon their clear duty under s39D(8). This may be because this duty was not adequately spelled out in the Codes of Practice and other guidance, in particular to counteract the mistaken belief that support for an appeal should be contingent upon the IMCA’s view of the person’s ‘best interests’ or prospects of success. Moreover, limited resources and possible conflicts of interest in commissioning may also have made IMCAs reluctant to help people to challenge decisions by supervisory bodies.

An alternative approachI suggest that instead of an automatic referral to the tribunal or the DoLS model of special procedural safeguards, a new framework for detention could take an alternative approach which means that tribunals are triggered in any of the following circumstances:

1) Where the detained person objects to their detention or restrictions placed on them in their care;

2) Where the detained person’s family, or any other person identified in accordance with s4(7) MCA, objects to their detention or restrictions that they are subject to (including restrictions on contact, outings, the use of restraint or sedation etc);

3) Where the RPR, any advocate involved in the person’s care or the AMCP has concerns that the care arrangements may violate the principles of the MCA or people’s human rights. (Potentially concerns expressed by CQC inspectors and other defined professionals could also trigger this referral)

Clear guidance will be needed on the first set of circumstances, as it may not always be clear what is meant by an ‘objection’ – particularly if the person is confused or has communication impairments. For example, in the wake of the AJ ruling, many health and social care professionals I spoke with felt that the ruling did not apply where a person’s objections were unreasonable, incoherent or out of touch with the reality of their situation (for example, asking to return to a home that had been sold or which they had not lived in for several years). I suggest that a similar approach might be taken to defining objections as that adopted in the revised MHA Code of Practice:

13.51 Whether a patient is objecting has to be considered in the round, taking into account all the circumstances, so far as they are reasonably ascertainable. The decision to be made is whether the patient objects, the reasonableness of that objection is not the issue. In many cases the patient will be perfectly able to state their objection. In other cases the relevant person will need to consider the patient’s behaviour, wishes, feelings, views, beliefs and values, both present and past, so far as they can be ascertained. In deciding whether a patient objects to being admitted to hospital, or to some or all of the treatment they will receive there for mental disorder, decision-makers should err on the side of caution and, where in doubt, take the position that a patient is objecting.

English mental health law has long recognised that the family of the detained person can act as a vital safeguard against the power of public authorities, through the creation of the role of NR. In the case of HL v United Kingdom31 HL himself was unable to express any objections, and it fell to his family and carers to object to his detention on his behalf. The DoLS themselves were set up to give family a route of appeal. I do feel concerned that the proposals of the Commission to essentially abolish the role of the RPR except where the AMCP exercises their discretion to appoint one will significantly weaken the role that family can – and often do – play in safeguarding people’s human rights. This may be especially problematic where there is a dispute between families and professionals about the care arrangements. Whilst the AJ case did highlight problems with relying upon family as RPR to be the primary safeguard for a person’s Article 5(4) rights, I do not think this means that family should not be able to easily trigger an Article 5(4) review if they have concerns and are willing and able to do so. I feel that the rights of the RPR should be enhanced, whilst their duties to act as a primary safeguard for Article 5(4) rights should be transferred to AMCPs and advocates (discussed further below). The Commission has argued that giving RPR’s rights to object to detention, similar to those of the NR under the MHA, is not possible because ‘actions taken on behalf of the relevant person must be in their best Interests’ and if the detention was not in their best interests it would be unlawful anyway (para 9.59). I think this overlooks a number of important nuances – firstly, that there may well be important differences of opinion between the RPR’s view of best interests and those of the detaining authorities, which signal that some form of scrutiny should be brought to bear on the detention itself, and secondly that not all actions on behalf of the detained person must be in their best interests. As Baker J made so clear in AJ the exercise of Article 5(4) rights is not a best interests matter.

I suggest a compromise approach: the AMCP should be required to consult on the best interests of the relevant person with all those persons ordinarily identified under s4(7) MCA. Where any of those persons objects to the detention, or specific restrictions a person is subject to (e.g. on contact, on outings, use of restraint or sedation etc), this should trigger a court or tribunal hearing. The duty to actually trigger the hearing should lie with the AMCP, not the family, but third parties should be able to apply as a last resort if the AMCP has failed to do so. This would give families far stronger powers to object to detention and to trigger a tribunal in a timely fashion (instead of waiting for an automatic referral), yet would not require family members to actually make the application to the tribunal themselves.

Even if the relevant person is not expressing any discernible objection, nor are those consulted about their best interests, it remains possible that there may be problems with the care arrangements which would benefit from a tribunal appeal. Many people subject to DoLS may be ‘unbrefriended’ in any case, and have no third parties to consult about their wishes and feelings or best interests. In MH v UK the ECtHR raised the question of what safeguard existed for individuals in such circumstances.32 Independent advocates may play a vital role in these circumstances. Under s39D(8) IMCAs currently have no duties to trigger an appeal where they themselves have concerns that the principles of the MCA have not been complied with or the person’s human rights are compromised. I suggest that a similar duty could be placed on advocates under the new framework as is placed on advocates under the Care Act 2014, to challenge a decision if they have reason to believe that the care arrangements are incompatible with the MCA or the person’s rights under the ECHR.33 To address the resourcing difficulties that advocates often have in triggering legal

31 (App no 45508/990) [2004] 40 EHRR 76132 §9533 The Care and Support (Independent Advocacy Support) (No. 2) Regulations 2014 SI 2889/2014 Regulation 5(8).

proceedings, they could simply be required to inform the AMCP and the AMCP have a clearly defined duty to refer the case for an appeal.

The characteristics of a court or tribunal for an appeal The Commission has proposed that a tribunal, instead of the CoP, should hear appeals under the new framework. The consultation paper is – understandably – light on detail about the specifics of the tribunal. Yet whether or not a tribunal is to be preferable to the current system will depend upon the details of how it functions in terms of ease of application, the ability to participate and simplification of evidence gathering etc, not the administrative structure it lies within and whether we describe it as a court or as a tribunal.

The application processThe process of making an application to the CoP is very complex – requiring the completion of numerous forms and often the submission of further evidence. The guidance is poorly geared towards those seeking to assert that a person has mental capacity. Moreover, once the court has ‘issued’ the application the applicant then bears the responsibility for notifying the parties and others about the proceedings. Whilst this may appear normal practice to a person experienced in adversarial legal proceedings, to an ordinary person this is a very onerous undertaking which diverts their resources from the substantive question at hand to grappling with legal bureaucracy and trying to understand an often complex legal process and trying to decipher often instructions framed in opaque and technical legal language contained within court correspondence and orders.

By contrast, once the patient or another person has completed the very short and simple forms for a tribunal application, the tribunal itself bears responsibility for notifying the other parties and obtaining the requisite reports. This process is much simpler for those who are subject to the proceedings. If a tribunal approach is adopted, or even if the ultimate decision is to remain with a modified Court of Protection, then ease with which the application process can be navigated will be critical. Redesigning the forms will not be enough – attention must be paid to the entire process. I suggest that focus groups of ‘real people’ (not lawyers or other experts on the legal process) should be used to test the accessibility of the entire application process, from locating the information and forms, completing them, right up to understanding correspondence from the court or tribunal itself.

The participation of the relevant personOne of the key advantages of the tribunal over the Court of Protection is that it is designed to maximise the participation of the patient. Indeed, the presumption is that the patient will attend hearings (with only clearly defined circumstances where this is not the case). Whether or not this advantage is conferred upon a new tribunal under the MCA will depend upon the tribunal rules and procedure, and the training and culture of the tribunal staff. They will have to address important questions like where a hearing takes place. Even with the regionalisation of the Court of Protection, it is questionable whether hearings in a regional court room are the most appropriate and accessible place for maximising the participation of a population who are likely to have significant care needs. Whereas tribunals under the MHA take place in hospitals, those subject to the Commission’s new framework will be located in a very diverse range of settings. It may not always be appropriate to hold a tribunal hearing in the place where the person lives. Alternative arrangements will need to be carefully thought out, with an emphasis on accessibility and participation and not simply the default option of ‘court room or nothing’.

Attention will also need to be paid to any special measures or accommodations that may be required in the court process. The needs of this population for support in understanding the proceedings and participating in them are likely to be higher than for those detained under the MHA. For some,

participation in person may not be possible at all – and to avoid ‘incapacity’ becoming an excuse for failing to accommodate complex accessibility or other requirements, careful thought will need to be given to defining the regulations and guidance that specify when participation in person is, and is not, appropriate, and what other forms of participation may be considered.

Attention should also be paid to the model of representation that is adopted before the tribunal. At present, representation before the tribunal under the MHA is based on a more traditional model of the client instructing their solicitor and their solicitor acting in accordance with their wishes and feelings. Clearly this model has limits where a patient may instruct a solicitor to argue what is not reasonably arguable34, and recent cases have created further limitations to this model35, yet it is still a very different model of representation to the ‘best interests’ model adopted by litigation friends in the CoP. I suggest that it cannot be compatible with Article 5(4) for a person’s own legal representative to argue in favour of their detention if the person themselves is objecting; what is the point of a tribunal or court hearing in such circumstances? Careful thought must be given to the best model of representing and supporting a person through the tribunal process.

Evidence gatheringDuring the summer I was fortunate to be able to examine 250 Court of Protection files, many of which related to DoLS proceedings. Unfortunately until our data analysis is complete and has been approved by the Ministry of Justice I am unable to share the results of our findings. However, one thing that was clear to me was the variability in the kind of evidence that the court directed be gathered as part of DoLS appeals. In some cases it relied upon s49 reports from NHS staff – most often psychiatrists. In others it gave permission for independent psychiatric or social work reports. Reports from other professional groups were unusual, but not unheard of – for example neurologists might provide a report where there were neurological (rather than psychiatric) issues relating to capacity. A tribunal would need to be able to replicate this flexibility in expertise.

One clear advantage of a tribunal is that evidence gathering could be vastly simplified if the independent check on the evidence of incapacity and best interests submitted by the detaining authorities could be supplied by tribunal members, rather than having to seek directions from the court as to what evidence would be admissible, identify individuals to produce such evidence, wait for expert’s to write their reports, give parties opportunities to comment on reports and potentially submit further questions… Whether or not the loss of this lengthy, complex and adversarial procedure would reduce the overall quality of the evidence relied upon by the tribunal may be a matter of perspective, but certainly it was striking in its complexity in contrast with the evidence gathering procedures for the tribunal under the MHA where the reports required by the detaining authorities were clearly set out in practice directions – rather than the directions of an individual judge – and followed a standardised procedure.

The scope of the court or tribunal’s inquiry and powersOne of the most important questions regarding any future court or tribunal will be the nature of the question(s) that it must answer and the powers available to it to make further orders. Defining the matters to be addressed by the tribunal may be no easy matter. Even if one defines the question as whether or not a person should be deprived of their liberty, this may relate to any of a number of wider questions about whether or not they should be subject to ‘continuous supervision and control’ or ‘free to leave’. For example, where a person is deprived of their liberty in the sense that they are 34 Buxton v Mills-Owens [2010] EWCA Civ 12235 YA v Central and NW London NHS Trusts and Others (Mental health : All) [2015] UKUT 37 (AAC); AMA v Greater Manchester West Mental Health NHS Foundation Trust and Others (Mental health : All) [2015] UKUT 36 (AAC)

not permitted to return to live in their own home from a care home or similar, discharging the detention would presumably then have the effect of permitting them to return home. But what if the question is not where the person lives, but simply whether they should be subject to particular restrictions that amount to their being subject to continuous supervision and control and not free to come and go of their own volition? This might occur because of risks to their physical safety if they go out alone, or may be because of concerns about their having contact with specific third parties or to prevent them from having sexual relations with others if they are regarded as lacking the mental capacity to consent to sex. In such cases, is the tribunal to adjudicate disputes about contact, or the capacity to consent to sex? If not, then it is hard to see how the substantive questions can be determined. It can often be very difficult to draw a clear line between decisions about ‘detention’ and these wider questions.

2. The UN Convention on the Rights of Persons with Disabilities

I welcome the Commission’s endorsement of the UN CRPD, and its proposals for a scheme that is supportive of the Convention’s aims and aspirations. The Commission does indeed face a difficult challenge in developing a framework that is based on the MCA and which satisfies the requirements of Article 5 ECHR, when both legal instruments are likely to be incompatible with the disability Convention. Given widespread ignorance of the CRPD in the UK, the Commission’s supportive but cautious approach seems sensible and may bring added benefits in raising awareness of the disability Convention among lawyers, policymakers and health and social care practitioners.

Supported decision makingI endorse the Commission’s intention to provide a formal framework for supported decision making. I concur that where individuals and families wish to use supported decision making, some may find it useful or otherwise attractive to have formal recognition of the role (and responsibilities) of supporters. In particular, this may help families who have experienced being shut out decision making or have had limited access to information where they are the person’s chosen supporter. The Commission’s proposals are based on the consent of the individual and the supporter; this is vital if formalised supported decision making arrangements are to be viewed as a welcome tool for individuals and families for addressing particular problems and not more state imposed bureaucracy.

Best interestsThe best interests test has long been subject to criticism as more a piece of rhetoric than a principle.36 There has been a tendency to blame perceived failings of the best interests test under s4 MCA on improper application of the Act, yet since s4 really only sets out a process and not a set of substantive values it is difficult to see how a person could be wrong at law for any outcome of a best interests decision provided they had followed the correct procedure in terms of consultations and considerations. The fact is, as the Commission points out, the statute does not create a hierarchy of values or a rebuttable presumption that a person’s own wishes and feelings, values and beliefs (if they can be ascertained) should hold any particular weigh in the determination of their best interests. As Baroness Warnock commented in a debate upon the House of Lords Report on the MCA, ‘even with the best training in the world, to make a determination of somebody’s best interest is to make a value judgment; and whatever the training, it remains true that the values of the person making the determination of best interest may be different from those of the person whose interest

36 Kennedy, I. (1991) 'Patients, Doctors and Human Rights' in Blackburn, R. and Taylor, J., eds., Human Rights for the 1990s, Continuum International Publishing.

is in question’.37 The MCA does not resolve the question of whose values should ultimately prevail where these are in conflict.

The United Nation’s Committee on the Rights of Person’s with Disabilities said in its General Comment on Article 12 CRPD that ‘The ‘best interests’ principle is not a safeguard which complies with article 12 in relation to adults. The ‘will and preference’ paradigm must replace the ‘best interests’ paradigm to ensure that persons with disabilities enjoy the right to legal capacity on an equal basis with others.’ The intention appears to be to shift towards an approach where the outcome of a decision is based more on the values of the individual, not those making decisions – a subjective, not objective test. There has been much debate as to whether the current best interests test, properly understood, might already satisfy this requirement. Much reliance has been placed on Lady Hale’s comments in Aintree University Hospitals NHS Foundation Trust v James38 that ‘The purpose of the best interests test is to consider matters from the patient's point of view.’39 Yet it is clear from the judgment that the person’s own ‘point of view’ – even if it can be ascertained – is not determinative. The judgment fails to spell out in precisely which circumstances the person’s wishes and feelings will not be determinative. It can be inferred (perhaps self-evidently) that Lady Hale certainly included situations when the wishes and feelings of a person with capacity would not be determinative40 (presumably here thinking of limitations of a public law character), but her judgment also seems to include situations where a person’s wishes and feelings lead them to select an option that is somehow unacceptable according to more general objective criteria. The simple example Lady Hale gives – that ‘it cannot be in the best interests to give the patient food which he does not like when other equally nutritious food is available’ – is very telling; it suggests that a person’s wishes and feelings must prevail within certain parameters (nutritious food options) but may not extend beyond those (to less nutritious foods).

In several cases judges have applied the best interests test in ways that may well be more in accordance with the preferred approach of the CRPD committee – for example in Westminster City Council v Sykes41 and more recently the case of Wye Valley NHS Trust v Mr B.42 These judgments are very welcome for those arguing for an approach that is more attentive to the wishes and feelings of the relevant person. Certainly they are an improvement upon some other judgments where it is difficult to find any real engagement with what the person’s own wishes and feelings are, as opposed to other people’s views of their best interests.43 Yet there are still examples of decisions by the Court of Protection that first identify a person’s wishes and feelings, and then go on to arrive at a decision that sits in tension with them.44 There has been little suggestion that such decisions are wrong as a matter of law: even if others might have arrived at a different decision, there is little in the statutory construction of the MCA to suggest that such decisions are precluded by it. In other words, the case that the MCA’s approach to best interests is already compatible with the CRPD’s emphasis on wishes and feelings – or can be made so through the cases such as Aintree – is, in my view, premature.

37 Hansard HL Deb, 10 March 2015, c63438 [2013] UKSC 6739 §4540 §4541 [2014] EWHC B9 (COP)42 [2015] EWHC 60 (COP)43 E.g. Re AA [2012] EWHC 4378 (COP); Northamptonshire Healthcare NHS Foundation Trust v ML (Rev 1) [2014] EWCOP 244 E.g. A Local Authority v WMA & Ors [2013] EWHC 2580 (COP);

On this basis, I welcome the Commission’s decision to consider whether a new statutory approach to best interests is required. The Commission has considered a number of different approaches, including the suggestion in connection with the LB Bill that the person’s wishes and feelings must be treated as ‘a primary consideration’, as well as the approach taken by the Irish Assisted Decision-Making (Capacity) Bill 2013. The Commission has proposed that the MCA should be amended ‘to establish that decision-makers should begin with the assumption that the person’s past and present wishes and feelings should be determinative of the best interests decision.’ The precise legal phrasing of this presumption has not been spelled out, and it is unclear when the presumption could be rebutted.

In his judgment in Wye Valley Mr Justice Peter Jackson expressed the view that:

the Law Commission proposal would not lead to greater certainty, but to a debate about whether there was or was not "good reason" for a departure from the assumption. To elevate one important factor at the expense of others would certainly not have helped the parties, nor the court, in the present case. All that is needed to protect the rights of the individual is to properly apply the Act as it stands.45

I respectfully disagree with the view of Jackson J that ‘properly applied’ the MCA is not in need of amendment to properly protect the individual’s wishes and feelings; it does not take into account how the best interests principle may be applied by a person diligently following the best interests checklist yet who holds a very different value base to somebody like Jackson J. The Law Commission’s proposals would at the very least require that the reasons for departing from the person’s wishes and feelings were carefully considered and made explicit. This is not always the case in judgments of the CoP nor – I suspect – in practice on the ground.

Whilst I support the Commission’s intentions to modify the best interests test to place a greater emphasis on the person’s wishes and feelings, my view is that this proposal does not go far enough to satisfy the requirements of the CRPD nor to change entrenched practices on the ground. The retention of the language of best interests will mean that the MCA remains facially at odds with the requirements of the General Comment, even if it can be argued that the ethos of best interests is more in line with the underlying spirit of Article 12 CRPD. Meanwhile on the ground, whilst those who closely follow the developments in MCA law and policy will be attuned to the growing emphasis on the person’s wishes and feelings in the best interests test, the reality is that for many people applying the Act on the ground, ‘best interests’ will still be closely linked to their own professional values – ‘clinical’ best interests, ‘financial’ best interests, etc. Without a radical rebranding the paternalistic values tied up in other ways of constructing best interests are unlikely to be dislodged. In contrast, an approach that explicitly emphasises the person’s wishes and feelings – for example, that taken by the Irish Assisted Decision Making (Capacity) Bill 2013, or the proposals of the Australian Law Reform Commission on capacity law46 - would make it harder to remain in ignorance of the central role that the person’s own wishes and feelings play.

One of the historical reasons given for not taking a more explicitly subjective approach under the MCA is the difficulty in many cases of ascertaining a person’s past or present wishes, feelings, values and beliefs. Yet most legislation that adopts a subjective test caters for such circumstances. For example, the Irish Bill states that decision makers must ‘give effect, in so far as is practicable, to the

45 §1746 Australian Law Reform Commission (2014) Equality, Capacity and Disability in Commonwealth Laws: Final Report, (ALRC Report 124) Sydney.

past and present will and preferences of the relevant person, in so far as that will and those preferences are reasonably ascertainable’, recognizing that it may not always be possible to ascertain what a person wants or would have wanted. In Australia and Canada, circumstances where a person’s wishes and feelings are not known are more explicitly catered for by adopting a staged approach. The Australian Law Commission’s proposals for decision making by representatives are as follows:

Where a representative is appointed to make decisions for a person who requires decision-making support:

(a) The person’s will and preferences must be given effect.

(b) Where the person’s current will and preferences cannot be determined, the representative must give effect to what the person would likely want, based on all the information available, including by consulting with family members, carers and other significant people in their life.

(c) If it is not possible to determine what the person would likely want, the representative must act to promote and uphold the person’s human rights and act in the way least restrictive of those rights.

(d) A representative may override the person’s will and preferences only where necessary to prevent harm.47

In British Columbia, Canada, s16 of the Representation Agreement Act 1995 states:

(2) When helping the adult to make decisions or when making decisions on behalf of the adult, a representative must

(a) consult, to the extent reasonable, with the adult to determine his or her current wishes, and

(b) comply with those wishes if it is reasonable to do so.

[…]

(3) If subsection (2) applies but the adult's current wishes cannot be determined or it is not reasonable to comply with them, the representative must comply with any instructions or wishes the adult expressed while capable.

(4) If the adult's instructions or expressed wishes are not known, the representative must act

(a) on the basis of the adult's known beliefs and values, or

(b) in the adult's best interests, if his or her beliefs and values are not known.

It would be helpful to have clarity on how much latitude decision makers should have to depart from a person’s wishes and feelings, where these are known. The best interests test under the MCA contains no threshold criteria for when a person’s wishes and feelings may be overridden, and such 47 Australian Law Reform Commission (2014) Equality, Capacity and Disability in Commonwealth Laws: Final Report, (ALRC Report 124) Sydney. Recommendation 3-3.

criteria are at best implicit in the Commission’s proposals for amendments to the best interests principle. One possibility might be to adopt necessity and proportionality tests, similar to those that must be met where restraint or deprivation of liberty is involved. Even so, such tests as they are applied under the MCA do appear to have fairly low thresholds for intervention – it does seem to be the case that people can be removed from their homes and families against their will with greater ease in the name of ‘best interests’ under the MCA than under legislation such as the Children Act 1989 or the Mental Health Act 1983.

3. Regulation and monitoringThe Care Quality Commission (CQC) has a statutory duty to monitor the operation of Schedule A1 in England.48 The CQC also has wider duties to have regard for ‘the need to protect and promote the rights of people who use health and social care services (including, in particular, the rights of… persons who are deprived of their liberty in accordance with the Mental Capacity Act 2005’.49

Regulation at the local authority levelMonitoring the operation of Schedule A1 presents significant challenges to the Commission since the government took the decision to abolish the CQC function of periodic reviews of local authority adult social services.50 The problem is that the primary safeguards for the protection of Article 5 rights contained within Schedule A1 – including independent assessments, reviews, the appointment of an RPR and IMCA referrals - lie at the level of the supervisory body, not the provider. Yet the CQC has no access to the supervisory body to monitor how it understands and applies Schedule A1, only the provider. In recent years, the CQC has taken an approach to monitoring the Schedules which has relied upon the consent of supervisory bodies to participating in the monitoring process – through responding to surveys and providing interviews.51 This has provided some useful data on the operation of key safeguards such as best interests assessments, RPRs and IMCAs. Yet the CQC are under no explicit duty to monitor these elements of the DoLS, nor the powers they would realistically require to do so on a routine basis and where they have reason to be concerned about the practices of particular supervisory bodies. The reality is that a consensual approach to monitoring is less likely to reveal problems with the operation of the safeguards than the kinds of routine periodic review that CQC was able to undertake when it had powers to monitor local authority social services and which it can perform in relation to hospitals in its Mental Health Act 1983 monitoring functions.

The Commission has suggested that because its proposals place a greater emphasis on individual decision making by AMCPs than organisational decision making by local authorities, there is no need for monitoring and regulation at the local authority level. I respectfully strongly disagree with this proposal. A great deal of power and responsibility will be vested in AMCPs, far more than best interests assessors under the DoLS. Individual professional regulation is responsive, not preventive, and is only very rarely triggered through a complaint to a professional body. Professional regulation does not examine the kinds of systemic issues that are still likely to affect any proposed framework 48 The Mental Capacity (Deprivation of Liberty: Monitoring and Reporting; and Assessments -Amendment) Regulations 2009 SI 827/2009, regulation 2.49 s4(1)(d) Health and Social Care Act 200850 The function of periodic review was contained within s46(3) of the Health and Social Care act 2008. This provision was substituted by s91 of the Care Act 2014 which instead requires CQC to conduct reviews of care providers rather than public authorities responsible for commissioning health and social care services, including local authorities. 51 See: Care Quality Commission (2015) Monitoring the use of the Mental Capacity Act Deprivation of Liberty Safeguards in 2013-14, London; Care Quality Commission (2014) Monitoring the use of the Mental Capacity Act Deprivation of Liberty Safeguards in 2012/13, London.

for the DoLS. It cannot provide feedback to practitioners and policymakers on the overall picture of how protective care is operating. The local authority would still presumably have responsibility for key questions such as ensuring an adequate supply of AMCPs, ensuring they are adequately trained and supervised and their case loads are not excessive.

Monitoring and regulation offer potentially very important tools for ensuring that any replacement for the DoLS operates as it should, and enforcing compliance with the scheme. At present, the Law Commission’s proposals rely heavily upon the tribunal system providing a check and balance against the considerable powers vested in AMCPs. Yet, for the reasons I have outlined above, reliance on an automatic reference to the tribunal is likely to be extremely costly and have other disadvantages. In addition, the tribunal system is unlikely to identify systemic problems with the operation of the framework and be able to make recommendations for systemic improvements in practice and policy. The tribunal is only able to look at the outcome in the particular case, and is likely to have a narrowly drawn remit that will not include examining the past actions of AMCPs. In contrast, regulators can examine questions such as whether advocacy referrals and RPR appointments are happening as they should, they can respond to and investigate the kinds of large regional statistical variations we have seen in the use of DoLS and the specific safeguards such as reviews and advocacy appointments. Regulators can also play an important role in encouraging, identifying and disseminating examples of good practice.

I strongly suggest that the Law Commission consider recommending that CQC are given powers to monitor the operation of local authorities in relation to the new protective care framework, and a clear statutory duty to report on the operation of the framework at the level of the local authority as well as the level of the provider. Otherwise we shall learn little about the true operation of the framework and any systemic issues that policymakers and others should have regard to addressing.

Duties to report on the experiences of the relevant person are needed

The CQC also has powers to interview in private the relevant person who is subject to the DoLS about their experiences. Private interviewing has long been recognised as a vital safeguard in detention monitoring. However, to date no DoLS report by the CQC has been able to describe how this power has been used on the ground or what inspectors have found through using it. It is quite possible that inspectors are using this power in their monitoring and regulation of the DoLS in care homes and hospitals, yet there are few records of this in inspection reports and consequently it is not discussed in the annual DoLS report. I suggest that alongside this power inspectors should be under a duty to record any interviews with the relevant person or others about their experiences of protective care, and the CQC should have an overarching duty to report upon the findings of inspectors using these interview powers in their annual report. This would ensure that where the power is used it is appropriately documented, and the annual report is informed by the views of those the system is supposed to serve, not merely those responsible for implementing it.

Domestic and supported living settingsAs the Commission acknowledges, there is a tension between complying with the requirements under the UN Optional Protocol on the Convention Against Torture (OPCAT) for independent monitoring and visitation of places of detention, and the reality that many of the settings where protective care will apply are domestic or quasi-domestic and such visitation may interfere with rights to respect for home, family and private life. At face value, the lack of any independent visitation mechanism in supported living settings violates OPCAT, yet there are good policy reasons

for being very cautious about extending powers of visitation to spaces which are – at law at least – characterised as a person’s own home.

One way of addressing this balance might be to consider whether the CQC could have powers of visitation that can only be exercised where they have reason to believe that the rights of those subject to restrictive care are at risk of being violated. These could be used to respond to situations like the abuse of adults with learning disabilities in supported living services in Cornwall.52

The CQC could also use other mechanisms – including monitoring through interviews and surveys with the consent of the relevant person – to gather information about the experiences of those who are subject to restrictive care in these settings. There is no a priori reason why the only way to monitor the framework is through intrusive powers of entry. Whatever powers are deemed appropriate, it seems to me that the CQC must have a duty to use whatever evidence it does have available to comment on the operation of the framework across all settings that it regulates, and not only those where it has powers of inspection. Even if it cannot visit the locations where supported living is provided, it can still monitor the policies and practices relating to restrictive care at the provider level in its annual reports.

52 Commission for Social Care Inspection and Healthcare Commission (2006) Joint Investigation into the Provision of Services for People with Learning Disabilities at Cornwall Partnership NHS Trust, London.