The MCA 11 years on: lessons, prospects and gaps

1. February 2019 Alex Ruck Keene Barrister, 39 Essex Chambers Honorary Research Lecturer at the University of Manchester Wellcome Research Fellow and Visiting Lecturer King’s College London Visiting Senior Lecturer, Institute of Psychiatry, Psychology and Neuroscience, King’s College London Research Affiliate, Essex Autonomy Project, University of Essex alex.ruckkeene@39essex.com The MCA 11 years on: lessons, prospects and gaps

2. Caveat This talk represents my personal view, not that of the Law Commission to which I was a consultant on the MCD project, nor that of the independent Review of the MHA 1983, to which I was legal adviser

3. The rear view mirror The Mental Capacity Act was a visionary piece of legislation for its time, which marked a turning point in the statutory rights of people who may lack capacity— whether for reasons of learning disability, autism spectrum disorders, senile dementia, brain injury or temporary impairment. The Mental Capacity Act placed the individual at the heart of decision-making. [….] The Act signified a step change in the legal rights afforded to those who may lack capacity, with the potential to transform the lives of many. That was the aspiration, and we endorse it. House of Lords Select Committee post-legislative scrutiny of MCA 2005 (2014)

4. What have we learnt so far – capacity can be difficult Wellcome-funded study of all reported cases where capacity either disputed or consideration by judge of capacity as part of project to develop educational tools First article: “Taking capacity seriously? Ten years of mental capacity disputes before England's Court of Protection” Key preliminary findings from judgments and interviews so far: Failures to consider practicable steps Failures to consider ‘causative nexus’ ‘Translation’ gap between Act and reality ‘Use and weigh’ as the most problematic area

5. Capacity: getting it right Assessment starts long before the meeting with P, with identification of Who should undertake the assessment What is the decision in question What is the information that is relevant to the decision What is the information that is irrelevant to the decision Location and timing Who should be present Values and assessment, especially in the context of ‘using and weighing’: King’s College Hospital NS Foundation Trust v C [2015] EWCOP 80

6. Flashpoints (1): capacity and vulnerability NB capacity is not so easy where a third party is involved: Is the adult’s lack of capacity ‘because of’ the impairment of or disturbance of their mind or brain? PC v NC and City of York Council [2013] EWCA Civ 478 Or the inability to take the material decision because of the presence and actions of the third party? LB Redbridge v GC [2014] EWCOP 485 “the true question is whether the impairment/disturbance of mind is an effective, material or operative cause. Does it cause the incapacity, even if other factors come into play? This is a purposive construction.” NCC v PB and TB [2014] EWCOP 14 If, on a proper analysis, the person has the capacity to take the decisions but they are vulnerable and at the mercy of a third party, then the Court of Protection has no role – it is the High Court exercising its inherent jurisdiction Will come back to this at the end

7. Flashpoints (2) Fluctuating capacity Not a concept expressly addressed or provided for in the MCA 2005, although it is referred to in the Code of Practice Two different situations, calling for two different responses: A person who has a temporary impairment of their ability to make decisions, e.g. suffering from a severe urinary tract infection and in consequence of the infection suffering from confusion and/or delirium. A person with genuinely fluctuating capacity, such as a person with bi-polar disorder whose condition may lessen or become more severe over time.

8. Best interests: the seminal text “45. The purpose of the best interests test is to consider matters from the patient’s point of view. That is not to say that his wishes must prevail, any more than those of a fully capable patient must prevail. We cannot always have what we want. Nor will it always be possible to ascertain what an incapable patient’s wishes are. Even if it is possible to determine what his views were in the past, they might well have changed in the light of the stresses and strains of his current predicament. In this case, the highest it could be put was, as counsel had agreed, that “It was likely that Mr James would want treatment up to the point where it became hopeless”. But insofar as it is possible to ascertain the patient’s wishes and feelings, his beliefs and values or the things which were important to him, it is those which should be taken into account because they are a component in making the choice which is right for him as an individual human being.” Aintree v James [2014] 1 AC 591

9. NB the consequences • Not reliably identifiable: Abertawe Bro Morgannwg University Local Health Board v RY & Anor [2017] EWCOP 2 • Circumstances under which wishes expressed: ADS v DSM [2017] EWCOP 8 • Past vs present wishes: “When past and present wishes collide: the theory, the practice and the future” Eld. L.J. 2016, 7(2) 132-140

10. The limits of best interests “35. So how is the court’s duty to decide what is in the best interests of P to be reconciled with the fact that the court only has power to take a decision that P himself could have taken? It has no greater power to oblige others to do what is best than P would have himself. This must mean that, just like P, the court can only choose between the ‘available options.” N v ACCG [2017] UKSC 22

11. The power of s.5 MCA 126 […] having looked at the issue in its wider context as well as from a narrower legal perspective, I do not consider that it has been established that the common law or the ECHR, in combination or separately, give rise to the mandatory requirement, for which the Official Solicitor contends, to involve the court to decide upon the best interests of every patient with a prolonged disorder of consciousness before CANH can be withdrawn. If the provisions of the MCA 2005 are followed and the relevant guidance observed, and if there is agreement upon what is in the best interests of the patient, the patient may be treated in accordance with that agreement without application to the court. I would therefore dismiss the appeal. In so doing, however, I would emphasise that, although application to court is not necessary in every case, there will undoubtedly be cases in which an application will be required (or desirable) because of the particular circumstances that appertain, and there should be no reticence about involving the court in such cases. Lady Black in An NHS Trust v Y [2018] UKSC 46

12. Where next? • Mental Capacity (Amendment) Bill • Liberty Protection Safeguards • Transition period so 2020/2021? • Independent MHA review reported December 2018 • Looking, in particular, at interface

13. The MCA: the gaps There is a significant cohort of individuals who: may not lack capacity for purposes of the Mental Capacity Act 2005 (‘MCA 2005’); are in some way vulnerable to coercion or duress on the part of third parties; and are outside the scope of domestic violence legislation.

14. We have been here before – and should we go there again? Law Commission Law Com 231: Mental Incapacity (1995) – an entire Part (IX) on “Public Law Protection for Vulnerable People at risk” Making Decisions: The Government's proposals for making decisions on behalf of mentally incapacitated adults (1999) (Cm 4465) – “The Government has decided, in light of responses to the consultation, that a number of issues raised in Who Decides? should not be taken forward at this time [including] public law protection for people at risk.” – no reasons given, unlike reasons given for not proceeding with advance statements Should we go here again? – potential project for Law Commission’s 13th programme of law reform on Vulnerable Adults, not taken forward for lack of commitment from Government to legislate Singapore Vulnerable Adults Act

15. The existential challenge Our end of term report from the Committee on the Rights of Persons with Disabilities (October 2017) Equal recognition before the law (art. 12) The Committee is concerned about: The legislation restricting legal capacity of persons with disabilities on the basis of actual or perceived impairment; The prevalence of substituted decision-making in legislation and practice, and the lack of full recognition of the right to individualized supported decision-making that fully respects the autonomy, will and preferences of persons with disabilities; The Committee recommends that the State party, in close consultation with organisations of persons with disabilities […] abolish all forms of substituted decision-making concerning all spheres and areas of life by reviewing and adopting new legislation in line with the Convention to initiate new policies in both mental capacity and mental health laws. It further urges the State party to step up efforts to foster research, data and good practices of, and speed up the development of supported decision-making regimes.

16. Keeping yourself up-to-date • http://www.39essex.com/resources-and-training/mental-capacity-law/ • http://www.scie.org.uk/mca-directory/ • www.mclap.org.uk • www.mentalhealthlaw.co.uk • www.courtofprotectionhandbook.com