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Law Commission Report: implications for human rights and restricting powers of health and care professionals

Expert on disability law and (currently occasional) blogger Lucy Series has just posted her initial thoughts on the law Commission proposals for the replacement of the current Deprivation of Liberty Safeguards (DoLS). These may be found on here on her Small Places website.

As Lucy says, there is a lot to think about… but her thoughts on the implications of the proposals for human rights issues are very interesting. Below I reproduce an excerpt from the blog article . The emboldening and underling of text is mine – an attempt to highlight what  parents and family carers may find particularly interesting. 

Some thoughts on Law Commission Report Restricting the power of health and social care professionals under the MCA?

There are many features of the detention scheme that are worthy of comment, but I want to finally draw attention to the Law Commission’s ambitions for Article 8 ECHR.  It is increasingly recognised that many decisions made under the MCA engage Article 8 rights to home, family life, privacy and bodily integrity.  The Court of Protection has increasingly required disputes concerning these matters to come to court, to try and insert some kind of procedural safeguard onto decisions with serious consequences for people’s lives that would otherwise be made with very little independent scrutiny.  Yet the boundaries of this duty to come to court are unclear – for example, it has been unclear whether a local authority can – acting under the ‘general defence’ of the MCA – decide that a person should no longer have any contact with a loved one whom they suspect of abusing them or otherwise being a problematic influence on their life.  The Law Commission’s 2015 proposals were for a fairly complex network of safeguards around decisions such as this; this ambition has been abandoned due to understandable concerns about cost and complexity and replaced with a requirement that certain ‘relevant decisions’ require a written record of the assessments and decision making under the MCA in order for professionals to rely upon the ‘general defence’ of s5 and s6 MCA.  These ‘relevant decisions’ include moving the person to long-term accommodation; restricting the person’s contact with others; the provision of serious medical treatment; the administration of “covert” treatment; and the administration of treatment against the person’s wishes.

This proposal raises the important question of whether a written record for such serious interferences with a person’s Article 8 rights is sufficient to guarantee the fair process of decision making required under the ECHR.  This is especially important in a context where the individual and their families experience significant problems accessing justice to challenge such decisions.  I’ll be honest; these proposals make me nervous.  Are we really prepared to allow local authorities to make decisions that might, for example, result in a husband and wife or parent and child being not having contact for the rest of their lives, or a person having serious medical treatment against their will, simply on the basis of a written record?  Who is actually going to look at that record?  What use is a record if the events the person opposes have already taken place?

I’ve spent a lot of time recently reading the Law Commission’s original proposals from the 1990s for the MCA, and I am not convinced that these particularly coercive uses of the ‘general defence’ of the MCA are what they intended.  In numerous places the Law Commission says their ‘general defence’ (at that time, ‘general authority’) wasn’t intended for coercion except in emergencies, and their draft of what became s6 MCA really reflects this – but was modifed by the government.  They had proposed a separate framework of public law powers for these more intrusive interventions, which were unceremoniously abandoned by the government, with no real explanation (and incredibly frustratingly, all the consultation responses to the 1997 Who Decides/Making Decisions consultations have been lost, so we’ve no record of what people said about it at the time).  I am not convinced these uses of the general defence, highlighted by the Law Commission, have the requisite constitutional legitimacy for such intrusive interferences by the state (and agents acting under state ‘authority’) as they were not explicitly debated in Parliament.  The potential for ‘violence’ under the MCA is really it’s dark and dirty secret, that nobody wanted to discuss when it was developed or passed into law, that are barely address in the Code of Practice (in contrast with the MHA Code) and that’s really why we’ve ended up in this mess of trying to shove procedural safeguards onto the Act a decade later.

In our recent report on participation in the Court of Protection, we argued that these issues raise such fundamental human rights and constitutional questions – not to mention the potential for significant public controversy – that there should be a proper public consultation on the decisions that can be taken by health and social care professionals under the ‘general defence’ and whether alternative procedural safeguards are needed.

Whilst I understand the Law Commission was seriously constrained by the climate of austerity in the kinds of safeguards it could propose here, I am concerned that in a context in which disabled people and their families are realistically unlikely to be able to challenge these decisions in the courts , many will feel these proposals still hand significant power to professionals with little oversight and few ‘brakes’. My view is that if families and disabled people, and their representative organisations, share my nervousness about the extent of the authority of health and social care professionals under the MCA’s existing mechanisms and the Law Commission’s proposals, they should campaign for just such a consultation.  If they don’t do so now, it is very doubtful the opportunity to reconsider this issue will arise again for a generation (especially since Parliamentary time is likely to be taken up with the consequences of Brexit for probably several decades hence).

One possible source of oversight and scrutiny that might have been effective would have been to expand the regulatory jurisdiction of the Care Quality Commission to examine the decisions of local authorities.  Until 2010 this was a core function of the social care regulator in England. Yet a political decision has been taken that this represents an unnecessary or undesirable ‘regulatory burden’, regardless of the personal cost to those reliant on local authority care, and the Law Commission’s report has not reversed that decision.

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