Empowerment Matters’ Response to the Law Commission’s Mental Capacity and Deprivation

of Liberty Consultation Paper

We welcome the Law Commission’s recognition that advocates play an important and unique role in supporting individuals when decisions are being made about care or treatment. Advocacy can provide a safeguard when individuals are in vulnerable situations, providing support that enables the person’s wishes, feelings and views to be heard and recognised, ensuring their rights are upheld.

We urge the Law Commission to consider the following:

Liaising with the advocacy sector once the consultation responses have been analysed and decisions are being made about future advocacy provision.

Applying a ‘light touch’ in relation to advocacy. This is not the right time to be radically changing provision.

Consider the effect any new legislation will have on advocacy commissioning and implementation in practice. In this time of very limited resources this is absolutely crucial.

Empowerment Matters is a community interest company, set up in 2012 by Sue Lee and Jakki Cowley. We have extensive experience as advocates, including Independent Mental Capacity Advocacy and in-depth knowledge and experience of the Mental Capacity Act and its practical application.

We believe that people have a right to be involved in and at the heart of decisions that affect their lives and are committed to empowering and promoting the rights of individuals affected by the Mental Capacity Act (2005).

Our work promotes and supports best practice across health, social care and advocacy sectors through the provision of information, training, resources, workshops and consultancy. We have the knowledge and expertise which enables organisations seeking to ensure they are fulfilling their requirements and responsibilities under the MCA and the Deprivation of Liberty Safeguards (DoLS) to find practical solutions. Our work also supports family carers to understand the implications of the Mental Capacity Act for them and their family member.

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Provisional proposal 9-1: an independent advocate or an appropriate person must be appointed for any individual subject to protective care. The individual must consent to such support or if the individual lacks capacity to consent, it must be in their best interests to receive such support.

We agree that an advocate or an appropriate person should be instructed for those subject to protective care.

We have assumed that the proposal means that an appropriate person will be someone who is able to support the person appropriately as defined in the Care Act and is most likely to be a family member. Some clarification is needed that it will be an Appropriate Person OR an Advocate. We assume that the intention is that if there is an Appropriate Person, an advocate would not be involved.

There is confusion over the term ‘advocate’ within the document. It sometimes refers to a family member acting as an advocate (in other words the ‘appropriate person’) and other times to refer to a professional advocate. For example, 9.35 “in all cases, an advocate should be instructed for those subject to protective care..” and “everyone will be supported by some form of advocate”. Whilst we agree with the statements, and of course family members may often be acting as informal advocates, it is unclear in the document when it is actually referring to an appropriate person rather than a professional advocate, particularly as the word ‘instructed’ is used when that would not normally be used in the context of a family member providing support.

Clarity is needed about who will make the best interests decision to appoint an advocate if the individual lacks capacity to make this decision.

Provisional proposal 9-2: the provision of advocacy should be streamlined and consolidated across the Care Act and Mental Capacity Act (in its entirety), so that Independent Mental Capacity Advocates would be replaced by a system of Care Act advocacy and appropriate persons.

We had assumed, as have many other advocacy providers we have spoken with, that this meant the IMCA role would be replaced in it’s entirety and removed from the Mental Capacity Act. Since discussing this with the Law

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Commission, we understand that this is not what is intended by statement 9.2 and we are pleased to hear that. We would not want to see IMCA replaced.

Some of the statements in the consultation document would suggest that IMCA is not totally understood. For example, when describing the role of the advocate under the Care Act, it says that ‘This goes much further than merely writing a report on the person’s best interests’ and describes the role as ‘best interests advocacy’. Best interests advocacy is not a term that is used within the sector and no model of ‘best interests advocacy’ exists. IMCA is a form of non instructed advocacy which is described and recognised as taking place when:

An individual lacks the capacity to instruct an advocate.

The non-instructed advocate seeks to uphold the person’s rights; ensure fair and equal treatment and access to services; and make certain that decisions are taken with due consideration for all relevant factors which must include the person’s unique preferences and perspectives

IMCAs focus on the person’s views, wishes and feelings of the individual, supporting the individual to be involved in the decision-making process and presenting evidence to assist decision makers in making best interests decisions. The IMCA role is in our view very much aligned with the role of the advocate described in the Care Act. The description at 9.17 of the role of the Care Act advocate is almost identical to that of an IMCA. We are concerned that if the IMCA role has been misunderstood, and deemed to be inferior, then that is not a strong basis on which to suggest that it should be altered. We welcome the shift in emphasis that is evident in the Care Act but we believe that the Care Act and MCA are closer in ethos than has been portrayed by the Law Commission.

There is a fundamental misunderstanding of the IMCA role at 9.34. IMCAs would not describe their role as one where they would be ‘expected to advise on best interests’. This expectation of the role is not stated in legislation, regulations or the MCA code of practice.

At 9.39 where it says that ‘We do recognise that best interests advocacy will continue to play a role when decisions are being made and the person has no-one else to represent his or her own view and wishes.’ Best interests advocacy is not recognised as a method of providing advocacy in the advocacy sector. In the situation described, the appropriate method would be non-instructed advocacy which uses an evidenced-based way of working and

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recognition of this way of advocates working would need to be in any new legislation. Any reference to best interests advocacy would be very confusing.

We describe below 3 scenarios when considering the future provision of advocacy.

Leave things as they are:

IMCA has been around for 10 years now and has a wealth of guidance, best practice documents endorsed by ADASS and has developed as a specialist advocacy role. Nationally there has been an increase in instructions year on year, which is an indication of its success. Some would argue that to change things now would risk losing the considerable expertise that has built up over the years and would potentially make referring individuals who lack capacity to make specific decisions less clear for professionals. One of the advantages of IMCA is that situations that require an individual to be referred to the service are clearly laid out in the MCA.

During the post legislative review of the Mental Capacity Act there were many positive comments about IMCA and the report stated that ‘The role of the IMCAs has been widely praised and much of the evidence calls for their role to be extended. We believe that extending the range of circumstances in which IMCAs are appointed, and involving them earlier in the decision-making process, would be beneficial’ (para 49).

The current position means that there is a lack of clarity regarding which advocate is to be instructed due to some duplication of roles when the Care Act was introduced. Duplication involves the following areas: Change of Accommodation, Safeguarding and Care Reviews. In some situations it is difficult to know which type of advocate (IMCA or Care Act Advocate) must be instructed. Whilst ultimately this may not matter as long as an advocate is involved, it does have implications for those instructing advocates and for commissioning. It may also mean that a Care Act advocate may be instructed who cannot be instructed as an IMCA due to the organisation they work for not providing it and/or the IMCA is not qualified in this area. This may be a good time to bring some clarity to this and to resolve some of those issues.

There has always been an issue with ‘appropriate to consult’. During the pilot phase of the IMCA services, pilot services strongly highlighted to the DH that we felt there would be on-going issues with this, not least because actually if a family member was considered ‘appropriate to consult’ but not willing to support the individual in the process, the individual was at risk of not receiving any support with making the decision. This has continued to be an issue with some IMCAs being involved when the decision-maker is consulting with the

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family and some not getting involved. Either way it has implications for the individual who lacks capacity to make the decision and is not in line with the expectations of the ‘appropriate person’ under the Care Act. If this carried on and legislation was not changed, it will continue to be an issue and there will always be people who lack capacity to make specific decisions who are left without any support to make that decision for themselves, despite statutory bodies having a clear obligation under Principle 2 of the MCA to provide the right support.

Replace the IMCA DoLS roles only

The 39a IMCA DoLS role currently has a very clear remit and referral pathway. In the training and consultation that we provide for advocacy providers, we very rarely hear of an issues connected with this role other than of course since Cheshire West, IMCA providers are struggling to deal with the number of instructions for 39a IMCAs. There is a clear need for this type of advocacy role, pre DoL authorisation.

It has been reported to us that the 39c IMCA role, one that is instructed during gaps in the appointment of a relevant person’s representative is rarely used as it is more likely that a paid RPR will be appointed. Going forward, it would appear to us that this role would not need to exist in any future legislation.

The 39d IMCA role is in our view an extremely valuable role. We do not agree with the statement at 9.14 that the 39d role ‘is a much stronger and more forceful role compare to other Independent Mental Capacity Advocate provisions..’ as any IMCA has powers to support a person to challenge a decision or can challenge on their behalf.

Once an individual is deprived of his or her liberty a 39d IMCA may be instructed where a supervisory body believes that instructing an IMCA will help to ensure that the person’s rights are protected. It is vital that there is someone where individuals are deprived of their liberty who is willing and able to support the person to challenge that detention if necessary. It is our view that this safeguard has not been as strong as it should be. The DoLS Code of Practice states that ‘It is the responsibility of the supervisory body to instruct an IMCA if the relevant person or their representative requests one’.

It was recognised once the DoLS IMCA roles had been implemented in 2009 that there were risks that individuals deprived of their liberty would not receive the support of an IMCA as in some areas it was unlikely that the Supervisory Body would instruct a 39d IMCA. This was recognised by the Social Care Institute for Excellence when writing the Guide ‘IMCA and paid relevant

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person’s roles in the Mental Capacity Act Deprivation of Liberty Safeguards’ (2011) where advice was given on best practice and the 39d IMCA role. ‘Good practice is for supervisory bodies to instruct 39d IMCAs at the start of all standard authorisations where a person has a family member or friend appointed as their representative. This gives the person and their representative the opportunity to meet a 39d IMCA so that they are in a better position to decide if they need the support of one at that point, or sometime in the future.’ So in other words, a presumption in favour of a person being appointed an advocate’. Some Supervisory Bodies adopted an ‘opt in’ method where there would be automatic referral for a 39d IMCA following an authorisation.

Paragraph 9.28 in the Law Commission consultation document rightly identifies that that there are issues with Supervisory Bodies appointing 39d IMCAs. In our view the only way to address this and to ensure that the individual receives this vital safeguard is to make it clear in legislation that any individual deprived of their liberty automatically has a 39d IMCA (type role) appointed, whatever their circumstances and regardless of whether there is a RPR or ‘appropriate person’ in place. The case of AJ v A Local Authority raised issues concerning practice and training but these could be addressed.

We cannot identify an equivalent role to the 39d IMCA in the Law Commission’s proposals that would provide support to the appropriate person when an individual they are supporting is deprived of their liberty. We believe this needs consideration and to also consider whether in situations where an individual is subject to restrictive care and there is an appropriate person and a DoL is likely, that advocacy must be involved at this stage prior to an authorisation being granted. Support for the appropriate person would be very similar to the current 39d IMCA role, ideally a combination of family/friends support with the support of an advocate working alongside them. We have seen this work in practice when the person in this situation has not been entitled to a 39a IMCA because there is someone ‘appropriate to consult’ but a non-statutory advocate is appointed. The person knows their family member very well and is a good family advocate but they may not (and neither should they be expected to be) expertly knowledgeable about the MCA or DoLS and this causes them to experience a great deal of stress and anxiety as they may feel they are letting their family member down.

We can see that reforming the IMCA DoLS roles may have benefits if an advocate is appointed when an individual is subject to restrictive care and there is no appropriate person. This will involve the advocate at an earlier stage than is current practice. We believe that it would be beneficial to involve an advocate for all people who are subject to restrictive care and that advocate would provide support to the individual and the appropriate person

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where there is one. It would mean that the statutory body/BIA equivalent would not be in a position of having to work out whether or not the family member/friend is ‘appropriate’ (as in ‘appropriate person’ or ‘appropriate to consult’) and would result in better support for the individual. We recognise that this has resource implications but in our view is the only way to ensure that the individual’s article 5 rights are fully protected. Also, ultimately it could be cost effective in that it has the potential to greatly reduce cases going to court. Alongside this, serious consideration should be given to making it possible for family members to self refer to the advocacy service when their relative is subject to restrictive care. This would be in line with the House of Lords MCA Select Committee recommendation 24: ‘We recommend that the Government consider the establishment of a form of self-referral for IMCA services to prevent the damaging delay that occurred in the case of Mr Steven Neary’. There are benefits to just replacing the IMCA DoLS roles but it does not address the issue of duplication with the other IMCA roles and the advocacy roles under the Care Act.

Replace all IMCA roles to be in line with the Care Act advocacy role.One interpretation of the provisional proposal at 9-2 ‘Independent Mental Capacity Advocates would be replaced by a system of Care Act advocacy and appropriate persons’ to mean that the Law Commission are considering that IMCA should be taken out of the MCA and IMCA-type advocacy will be contained within a single piece of legislation. This does have some benefits but our view is that the disadvantages outweigh the advantages of doing this.Some of the benefits are that ‘appropriate to consult’ would go, the duplication of roles would be addressed and an advocate would become involved at an early stage in the process. For example, the role of an advocate within safeguarding probably sits better in the Care Act.

Potential disadvantages:

There is a risk that this level of expertise would be lost if the IMCA role did not exist as it does now.

All advocates acting under the Care Act/new legislation would need the same training as IMCAs. This could potentially be positive but with the current issues regarding resources and training, and more resources needed for this scenario, there is a huge risk that this would not happen resulting in advocates who do not have the relevant skills and knowledge.

Implications for commissioning. Currently it is possible for Care Act advocacy and IMCA to be commissioned separately. IMCA commissioning although there are some issues, generally is working in

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that all Local Authority areas have a commissioned IMCA service and on the whole Local Authorities understand their obligations to commission it.

Commissioning Care Act advocacy has been patchy and numerous models have been adopted throughout the country or in some areas, no Care Act advocacy has been commissioned. For example, some organisations work to ‘pay on results’ type contracts, others on ‘zero hours’ contracts. One organisation we know of shares a contract with another organisation and referrers contact them for 2.5 days of the week and the other organisation for the other 2.5 days, resulting in confusion for referrers. There is also a real concern that should major changes be made in terms of provision, funding would be reduced in real terms due to the potential ‘streamlining of contracts’.

It would broaden the advocacy role as advocates would be required to develop considerable expertise in all relevant legislation whereas you could argue that part of the success of IMCA is that the role is so focussed on the MCA which IMCAs must develop expert knowledge in. It also raises questions about rates of pay and training which has resource implications. In other professions there is recognition of specialisms, for example, some social workers specialise in working with children and they would probably not then work simultaneously with adults who are detained under the Mental Health Act. Specialisms are important. Whilst we would agree it would be beneficial for this level of knowledge and experience across the board, it is unrealistic to expect that this could occur without the necessary resources to fund training, on-going professional development as well as being able to achieve a new advocacy qualification. It should also be recognised that the qualification only goes so far in terms of preparing advocates for the role (whichever form of advocacy it is) and we are aware that providers simply do not have the resources to commit to on-going professional development. There is a real risk that all 3 roles become so watered down they become ineffective unless there is proper investment.

As the proposals stand, replacing all the IMCA roles risks some individuals no longer having access to advocacy that they would be entitled to via the MCA unless all the situations where the person is entitled to IMCA are carried over into the new legislation. Examples are the right an individual has when serious medical treatment is being considered and the MCA places a duty on the NHS to instruct an IMCA for an individual that lacks capacity to make the particular treatment decision. Or Accommodation provided under section 117 of the MHA.

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We would be keen to ensure that any changes do not result in a loss of current entitlement to advocacy for individuals. This needs to be very carefully considered.

We think it may work to use new legislation to address some of the anomalies in the IMCA role to bring it more into line with the Care Act advocacy role.

Revising the MCA and Code of Practice

The House of Lords review into the Mental Capacity Act highlighted that the DoLS are at odds with the style and empowering ethos of the MCA. Could the IMCA roles be brought into line with the Care Act through revision of the MCA and Code of Practice? ‘Appropriate to consult’ could be revised to be Appropriate Person (with the same meaning as the Care Act) and would result in better support for individuals and is in line with the House of Lords recommendations at para 50 of their report: ‘We believe the costs of greater IMCA involvement should be balanced against the resources required in lengthy disputes or ultimately in litigation’.

Further clarity, in the light of 10 years experience and practice, could be provided on the IMCA/Care Act advocacy roles and their role in challenging decisions. The Code could be slightly revised to actually reflect what IMCAs do in practice and reflect how similar their role is to that of a Care Act Advocate. The IMCA DoLS roles could be revised in line with the requirements under the new DoLS safeguards. Essentially IMCA does not need to be replaced, it just needs to be reviewed and updated. Many of the issues with the IMCA service highlighted in the House of Lords Select Committee report are a result of a service that has been significantly under resourced and has a lack of investment in training and resources. Changing the legislation that entitles people to advocacy will not address these issues.

Question 9-3: should the appropriate person have similar rights to advocates under the Care Act to access a person’s medical records?

The Care and Support (Independent Advocacy Support) Regulations 2014 state that:

(6) In particular, an independent advocate may examine and take copies of any relevant records(a) relating to the individual in circumstances where—

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1. (a)  the individual has capacity, or is competent, to consent to the records being made available to the independent advocate and does so consent; or

2. (b)  the individual does not have capacity, or is not competent, to consent to the records being made available to the independent advocate but the independent advocate considers it is in the best interests of the individual.

This would be no different to what the appropriate person could expect within existing legislation and does not need to change. If an individual has capacity to make a decision about who his or her records are shared with, that is their decision to make. They may, for example, consent to their records being shared with their advocate and not their family member or vice versa. The appropriate person already has similar rights to advocates.

Sharing information in the best interests of an individual when they lack capacity to consent to that information being shared is covered very well in chapter 16 of the Mental Capacity Act Code of Practice and of course the sharing of data is regulated by the Data Protection Act 1998.

This would be a need to spelt out in legislation or Code that an appropriate person could access records and could mirror The Care and Support (Independent Advocacy Support) Regulations 2014 at (6).

Question 9-4: should Independent Mental Health Advocacy be replaced by a system of Care Act advocacy and appropriate persons?

No, we believe it should not. The IMHA role is a specialist role within the Mental Health Act and is available to all qualifying patients i.e. most patients where the framework of their care/treatment is governed by this Act. It is surprising that after only 6 years after IMHA implementation, that this is even being considered. Particularly given the fact that the Department of Health funded several months of training, enabling advocates to be prepared for the changes in the Mental Health Act as well as the IMHA qualification – which has resulted in many qualified IMHAs (there are, as far as we are aware, no qualified Care Act advocates at present but even if there were, there is no expectation that Care Act advocates would or should have the in-depth knowledge of the Mental Health Act as IMHAs do). There has also been investment in research, resources and toolkits to enhance those carrying out their role and recognition of this is important.

The proposal also has implications for the nearest relative too given the that should the same principles in the Care Act apply, a person detained under the

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MHA will only be afforded the right to an advocate if their nearest relative (Appropriate Person) cannot support them through the decision making process i.e. that the criteria for accessing support from an advocate would carry the same criteria as those in the Care Act.

Were this the case, there is an obvious clear conflict of interest that would need to be addressed in making this decision. Nearest relatives have specific rights which enable them to apply for the person’s detention, object to it or effect discharge and all 3 of these decisions may be in direct conflict with the person’s wishes and feelings. This therefore raises questions as to how the judgements would be made with regards the appropriate person, whether consideration would be an automatic default of ascertaining this with the nearest relative, whether the person would be asked if they consented (which would be in line with the Care Act) but if they objected, would their capacity then be considered. There is the potential for the nearest relative to be appointed against the person’s wishes where it is believed to be in the individual’s best interests even though the they may have opposing views.Clarification would also be needed as to what the decision making process would be given as care and treatment is governed by the MHA 1983 and not the Care Act.

There remains a query with regards how the person could access advocacy under the MHA and whether this remains the same as the Care Act criteria i.e. access to an advocate is dependent on whether they have substantial difficulty in decision making. IMHA is currently the only statutory advocacy that does not consider having family or friends OR where the person may lack capacity as a criterion. Should this go ahead it therefore implies that access to an advocate under the MHA 1983 is only relevant where there are difficulties in decision making, this was never the point of this amendment that brought in the role of IMHA in 2007 and we do not believe it should change. Access to an IMHA currently is purely based around the individual’s detention and whether they wish to access the support of an IMHA or lack capacity to instruct one which therefore affords them further rights under the MHA regardless of issues of capacity.

However we would support a change that was in line with the role of IMHA in Wales that recognises the right to advocacy for a person that has a mental disorder regardless of their status under the MHA as this would be more inclusive and enable contracts, where there are restrictions on who advocates can work with, to be more flexible and achieve greater equality.

Provisional proposal 9-5: a “relevant person’s representative” should be appointed for any person subject to the restrictive care and treatment

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scheme (or the hospital scheme) and who is being represented by an advocate. The person must consent to being represented by the representative, or if they lack capacity to consent, it must be in the person’s best interests to be represented by the representative.

Yes we agree with this.

The role of the Relevant Person’s Representative is one where issues related to supporting an individual to challenge the DoL authorisation may be an inherent part of this role and may represent a conflict of interest for the RPR. The issues are summarised well at 9.54 and 9.55 in the proposals.

Paragraph 9.57 in the consultation document is confusing. It is likely that in cases where an advocate has been appointed as a paid RPR, that this is due to there not being an available family member or friend who can take on the role of the Relevant Person’s Representative. This is the currently the case and an advocate will be in the role of a paid RPR. It will sometimes be the case that ONLY an advocate will be appointed for someone subject to restrictive care where there are no family and friends. Many individuals subject to the DoLS do not have a single person in their lives who could become the RPR and the legislation must reflect this.

Provisional proposal 9-6: where there is no suitable person to be appointed as the representative, the person should be supported by an advocate or appropriate person.

As above. If there is no suitable person as the representative, it is highly likely that there will be no suitable person to act as an appropriate person.

Provisional proposal 9-7: the Approved Mental Capacity Professional (currently best interests assessor) should have discretion to appoint a representative where the person is being supported by an appropriate person.

Whilst in theory this appears to offer a safeguard for the individual it also seems to contradict what is already identified as an issue with the current system. The consultation paper clearly states that the role of a representative does not afford the individual a reasonable safeguard. Indeed, this is in fact why the role of a 39d exists and as we’ve already highlighted, we feel this should be an automatic referral.

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But there are no plans for the equivalent of a 39d to be in place but an allowance for a paid representative where the AMCP deems this appropriate. Whilst we do agree with this, it does not seem to address the existing issues with the person’s representative and we cannot see how this recommendation addresses this other than effectively continuing with the existing framework but under an alternative name. There is still a risk whilst this remains a discretionary appointment that the individual subject to restrictive care will not be fully represented by the unpaid representative (usually a family member) because of the issues already noted e.g:

- representatives do not always support the persons desire to challenge their restrictions

- representatives do not have enough knowledge, skill or experience with regards the MCA

- representatives are not always aware of what their role entails or what the individuals rights are

- representatives may be appointed but have minimal contact with the individual

However were there a system of accountability as noted in 9.63 this may then address all of the above concerns / gaps in the process.

Provisional proposal 9-8: the Approved Mental Capacity Professional (currently best interests assessor) should be required to monitor the relevant person’s representative and ensure they are maintaining contact with the person.

Yes we agree with this, please note previous response.

Question 9-9: does the role of relevant person’s representative need any additional powers?

We do not think that the RPR requires additional powers. However, as already stated, we think that for RPRs to be able to carry out their role effectively they need the following:

- a clear overview as the rational for restrictive care for the individual- a clear guide as to what the individuals rights are and how to achieve

them- a clear overview and clarity provided on the role on an RPR- there should not be an assumption that because the proposed RPR is

a family member that they are willing and/or able to take this role on

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Since the introduction of the DoL safeguards, many family members appointed as the RPR have not been given the above, we know of examples where family have been appointed yet not involved in the authorisation process or told what an RPR is. This cannot be acceptable practice and the key issue here we believe is that information and awareness along with support provision has been poor and we would hope this can be addressed.

Consultation question 9-10: should people always where possible be provided with an advocate and a relevant person’s representative, and could these roles be streamlined?

We think it could all be made much simpler and this could be done by just focussing on the restrictive care scheme. If a person is subject to restrictive care, an appropriate person is appointed. Then if the person is deprived of their liberty, the appropriate person is still involved as an RPR and their role is to support the individual to challenge the DoL where appropriate and necessary. Once a person is subjected to restrictive practices, an advocate must also be involved and can offer support to the individual and the appropriate person, where the appropriate person requires and agrees to that support. If any conflicts of interest arise for the advocate in supporting 2 individuals, 2 different advocates could be appointed. This is standard practice now anyway. There is a strong safeguard for the person, there is support for their family member/friend and the advocacy support could have a considerable impact on decreasing the amount of cases going to the Court. The crucial thing is that there are potentially 2 individuals who are involved and one of them knows the individual well and the other is independent. If the individual does not have any family or friends who knows them and who could act as an appropriate person/RPR, an advocate must be appointed.

In this scenario, Paid RPR would not be a role and neither would 39c IMCAs. The role would be called ‘advocate’.

Provisional proposal 10-1: the Mental Health Act should be amended to establish a formal process for the admission of people who lack capacity and who are not objecting to their care and treatment. The safeguards provided would include an independent advocate, a requirement for a second medical opinion for certain treatments and rights to appeal to the mental health tribunal. The Mental Capacity Act (and our new scheme) could not be used to authorise the hospital admission of incapacitated people who require treatment for mental disorder.

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Whilst we recognise the existing difficulties as described in depth about ‘case E patients’ in the consultation paper, we do not support this. The document states that use of the MHA often carries a stigma and we do not see how the above addresses this, in fact it appears to suggest that even more people will be ‘detained’ under the MHA, notably those with a learning disability who are compliant. This appears to be a back door approach to detaining people with a learning disability who would not otherwise fit the criteria of the MHA and we do not view this as a step forward.

Sue LeeJakki CowleyEmpowerment Matters30/10/15

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