Chloe Trew from SCLD’s policy team blogs on how the review of the Mental Capacity Act 2005 (England and Wales), published today, has important messages and lessons for Scotland. Chloë is not a lawyer and would welcome comments and clarifications on this analysis. Some of the language and concepts in this blogpost are hard to understand. However, the ideas are so important that we felt we needed to blog on them. We have included a news story on our website which explains what the review is about in more accessible language.
Yesterday the House of Lords Select Committee on the Mental Capacity Act 2005 published the findings of its review of how this piece of law was working in practice. You can read the full report here and the easy read here. Although we have a different suite of legislative provisions around mental health, capacity and adult protection here in Scotland, we should have regard for the Select Committee’s findings, since they go to the heart of important issues in the support and human rights protection of people with learning disabilities.
A key issue raised by the Select Committee relates to deprivation of liberty. All people have the right to liberty and security, which can only be limited in certain circumstances. Freedom from arbitrary and disproportionate state interference with individual liberty is enshrined in Article 5 of the European Convention for Human Rights and Fundamental Freedoms, to which the UK is a party. The mechanism for protecting this right is through the courts here in Scotland and ultimately at the European Court of Human Rights in Strasbourg. Before considering the specific challenges to liberty facing adults who lack capacity today, we should acknowledge that for many years, many people with learning disabilities in Scotland were institutionalised and deprived of this most basic right merely on the basis of having a learning disability. We have a collective responsibility to recognise and remember this most arbitrary, disproportionate and discriminatory of policies and reflect on whether we are still making policy and law in its shadow.
More recently, the issue of deprivation of liberty for people who lack capacity, which includes some people with learning disabilities, was brought sharply into focus by a human rights case brought against the UK in 2004, by HL, a man on the autism spectrum. The case is sometimes known as the Bournewood case, from the name of the hospital to which HL was eventually admitted. HL had a complex home life, which had improved upon his going to live with informal carers, a couple known as Mr and Mrs E. However, one day while attending day services, he began to display behaviours which staff found challenging and he was taken to a local psychiatric unit, where he was treated. He did not object to being there and as such was treated as a voluntary, or informal patient, meaning that he was not detained under mental health law. The unit prohibited visits by Mr and Mrs. E and although he was not detained, nor was he able to leave the unit. He was also treated using anti-psychotic medications. Following his release, HL and his carers brought a case against the UK, alleging that he had been deprived of his liberty and that the common law doctrine of necessity had not been sufficient to authorise this.
The European Court of Human Rights agreed on the basis of a lack of procedural rules governing the circumstances in which HL had been admitted and detained at the hospital, the fact that he had been deprived of contact with his carers, and most importantly that his status as a voluntary patient had meant that he had no access to any legal safeguards, such as review by a competent legal authority. The judgment in HL v UK triggered a review in England and Wales of the way in which the right to liberty of adults lacking capacity was protected, with the introduction of Deprivation of Liberty Safeguards or DoLS. These were designed to ensure that people who lacked capacity and were deprived of liberty had some legal safeguards in place to protect them, to ensure that their detention was not arbitrary.
In their review published yesterday, the House of Lords Select Committee’s report found that DoLS are not fit for purpose, describing them as:
‘poorly drafted, overly complex and bear[ing] no relationship to the language and ethos of the Mental Capacity Act. The safeguards are not well understood and are poorly implemented. Evidence suggested that thousands if not tens of thousands, of individuals are being deprived of their liberty without the protection of the law, and therefore without the safeguards which Parliament intended. Worse still, far from being used to protect individuals and their rights, they are sometimes used to oppress individuals, and to force upon them decisions made by others without reference to the wishes and feelings of the person concerned.’
One of the critical issues around deprivation of liberty is that there is no fixed definition in law of what this entails. The case law from the European Court of Human Rights has at times been contradictory, making it hard for States Parties to create policy and draw up statute and hard for courts to make decisions in individual cases as to whether a deprivation of liberty has taken place. Furthermore, the domestic courts and appeal courts have also disagreed as to the criteria which should be applied to establish if a deprivation of liberty has taken place.
In England, the definition of deprivation of liberty has recently been tested in a number of cases including that of Stephen Neary, a young man on the autism spectrum placed into local authority care against his wishes and those of his father. At present we also await a decision of the Supreme Court on the Cheshire Case , involving P, a man with learning disabilities, who was considered to lack capacity and whose movements were subject to restrictions, including being restrained through the use of a body suit to prevent him from ingesting his incontinence pads (for more on this and other cases, see the excellent blog by Dr Lucy Series)
These are highly complex issues. We should remember that in as much as public authorities are under duties not to interfere with human rights, such as the right to liberty and security, they also have positive duties to protect them. As people with learning disabilities frequently find themselves caught on the knife edge of these conflicting duties, these are questions which we must ensure our public authorities are well-supported to answer. In Ps case, it would have been a dereliction of duty for health and social care providers not to take steps to prevent him from engaging in a practice which so clearly endangered his own health. The critical question is, was their set of solutions one which was proportionate, person-centred, respectful of his human dignity and one which acknowledged his human rights, as set out in the ECHR and the UNCRPD?
So what is the situation regarding deprivation of liberty of people with learning disabilities who lack capacity in Scotland? At present there is no scheme like DoLS which provides legal safeguards against what may amount to deprivations of liberty for adults who lack capacity. So for example, a person in Scotland may well be being deprived of their liberty unlawfully if they
- lack capacity to make a choice about where they live;
- live in a care home because they need specific support or health interventions and;
- are subject to measures which might have the effect of restricting their liberty in that care home.
This means that there are likely to be a significant number of people in Scotland who are subject to what could amount to deprivations of liberty in human rights law, a fact which the Mental Welfare Commission for Scotland has alerted on a number of occasions.
The Scottish Law Commission is keenly aware of the gap in legal protection and has been undertaking a review of this question as part of their 8th programme of law reform. This has included a consultation ‘Discussion Paper on Adults with Incapacity’ and meetings with organisations representing people who may be affected, including SCLD, People First Scotland and the SIAA. They have been drawing up some recommendations which are likely to be made into a Bill which will be available for public consultation. SCLD has provided initial thoughts on draft suggestions and we are looking forward to continuing to support this important area of work.
It is clear from the report by the House of Lords Select Committee that following the DoLS model is unlikely to prove fruitful for Scotland. One advantage that the Scottish suite of mental health and capacity law holds over English law in deciding the best approach is a common set of guiding principles with regard to the way we intend that people should be treated (even if this may not always be borne out in practice). The conclusion of one of the submissions received by the House of Lords in their review from the Cambridge Intellectual and Developmental Disabilities Group is that this was not the case in England at the time DoLS were developed:
‘The principles and scope of, and criteria for the Mental Health Act and the Mental Capacity Act are fundamentally different….the MCA is based around principles of autonomy, empowerment and the importance of supporting decision-making capacity as far as possible; the MHA is not.’
These are not easy issues. Even if in Scotland we manage to come to an appropriate, workable and human rights based conclusion on the issue of authorising significant restrictions on liberty and providing legal safeguards here in Scotland, we must still draw the distinction between the issue of whether the deprivation of a person’s liberty has been legally authorised and whether that person is receiving the support they want and need in the setting that they choose. Is their life the way they want it to be? We should not be satisfied until people with learning disabilities get the lives they want, lives which are meaningful to them, where their choice and control is maximised and where their human rights are respected.