We are now over seven years into the Mental Capacity Act and five and a half since the Deprivation of Liberty Safeguards were added to the mix. Back in 2007, mental capacity and best interests were already well-established concepts. They weren’t invented at the time of the MCA. I recall around enactment time, telling people that it was no more than enshrining existing common law into statute, and the MCA was little more than good practice, but now there was a statutory duty to follow it. We’d all simply fall into step and the world would be a better place.
Well it doesn’t seem to have worked out that way. Perhaps in hindsight, my glasses had a roseate tint and my thinking was naive. The evidence of the House of Lords post-legislative scrutiny report, while acknowledging the continued widespread support for the Act and its principles, made it abundantly clear that it is not effectively understood or implemented across the health and social care economy. “Patchy” was the word used, which hides a multitude of sins.
Combine this with the ongoing ignorance about the limitations of local authorities’ power to “regulate, control, compel, restrain, confine or coerce” adults with whom they are working (with thanks to Sir James Munby for the range of verbs), it leave a pretty depressing picture.
Right back to 2006 we have had cases come before the High Court, then the Court of Protection, where local authorities have spectacularly overstepped the mark. Surrey with JE v DE, then Manchester in 2010 with G v E. Hillingdon took up the baton in 2011 with the spectacular story of Steven Neary, then there seemed to be something of a lull (or did I just miss a few cases?) and perhaps practice was sorting itself out and local authorities seemed to ‘get’ the legal framework.
But suddenly in the past year, we have had a whole string of sorry stories about breaches of process, European Convention rights and legal duties. First Milton Keynes who followed up safeguarding concerns with pre-emptive action without any legal authority. Closely followed by Somerset who failed to check out the fairly easily available evidence during the safeguarding investigation (if we are to believe the judgement) and again used their non-existent powers to prevent a person from returning to their home.
I talk about them as ‘breaches of process’, but behind each of them there is a story of a vulnerable, maybe incapacitated individual and their family and network. The person is likely to have difficulties, otherwise they wouldn’t be on the social care radar. They may need support and possibly protection, from themselves or others. But they also need protection from the unfettered actions of the local authority.
Now at the start of 2015 we have two cases before the end of January. Of course they haven’t just happened – it takes months or years to get to this stage of the process, but it has been this month when both Essex and now Cambridgeshire have shown their rather blatant lack of legal literacy, when it comes to mental capacity, safeguarding and human rights.
It’s a bit like crime prevalence reports. You really don’t know if it’s a real indication of an increasing problem or just better reporting (or in this case, more assertive families or networks who are prepared to make a formal challenge). I hope it’s the latter, because if it’s not, then we are looking at a pretty depressing state of affairs across adult social care.
I am getting into very uncomfortable territory. I am a social worker by trade, for very many years, and proud of my profession. On occasion I come across Christopher Booker’s articles in the Telegraph online. I don’t search them out, but the more extreme ones tend to get around, for example when he is slagging off the ‘secret court’ [of Protection] which threatens the very fabric of our society. I was even recently moved to get involved in a discussion in the comments section below his article. I don’t recommend it, particularly if you have a heart condition. But where I’m going in this post almost seems like Mr Brooker territory. Putting down local authorities as evidence of the overbearing state which needs to be brought to heel.
Well that is absolutely not my view. But to avoid the risk of this backlash, a number of local authorities need to significantly up their game, otherwise there will be little argument against this criticism.
We have had seven years of a range of court judgements, which clearly have not been heeded (or read?) in some quarters. Back in 2010, Munby J (as was) in Re A & Re C made this statement, which Cambridgeshire (and the rest) would have done well to note. “…if there is objection to the steps it is proposing to take, either from the vulnerable adult or from relatives, partners, friends or carers, it seems to me that a local authority needs to enlist the assistance of the court…before it embarks upon any attempt to regulate, control, compel, restrain, confine or coerce a vulnerable adult.”
He goes on… “Only if the person is compliant and there is no objection from those concerned with his welfare is a local authority probably going to be justified in having resort without judicial assistance to the doctrine of necessity. And even where the person appears to be compliant a local authority needs to act with considerable caution before attempting even to regulate or control, let alone to restrain or coerce, a vulnerable adult. One cannot conflate absence of objection with consent. And to equate helpless acquiescence with consent when a person is confronted with the misuse or misrepresentation of non-existent authority by an agent of the State is both unprincipled and, indeed, fraught with potential danger…”
Well by all accounts, Mr and Mrs N in the Cambridgeshire Ombudsman case were hardly helplessly acquiescent. They clearly stated their objections on a number of occasions, and the local authority seemed to be assuming that they should leave the incapacitated service user or his wife to initiate Court of Protection proceedings.
You may have read Lucy Series’ excellent commentary on this latest case on her blog. She goes into further detail on this and also covers the Essex case in a previous post. But how are we going to ensure that professionals and local authority legal advisors are aware of the law under which they are acting? Isn’t this simple professional responsibility, or am I being overly simplistic? We have a whole new legislative structure coming into force in April. The Care Act 2014 embeds the principles of the Mental Capacity Act throughout and I have been praising it for that. But if it has taken seven years for people not to understand the MCA and many more years for people to continue to believe that they have powers which simply don’t exist, what hope for effective implementation of this new structure?