The following is a fantastic guest post by Lucy Series who runs The Small Places blog.
The recent publication of an issue paper on legal capacity by Thomas Hammarberg, the Commissioner for Human Rights at the Council of Europe, caught my eye. The issue paper is strongly influenced by Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD), the right to equal recognition before the law. I have written about Article 12 before, and there is plenty of interesting writing about it around on the internet (I particularly recommend papers by Quinn, Dhanda and the Center for the Human Rights of Users and Survivors of Psychiatry for thought provoking reading). It would be easy to dismiss this paper as being mostly relevant to “other” international guardianship regimes and not recently revised “modern” guardianship regimes like the Mental Capacity Act 2005 (MCA), but there are elements of it that are quite challenging to practices in England and Wales.
Issues that stood out for me were the recommendation to:
6. End ‘voluntary’ placements of persons in closed wards and social care homes against the person’s will but with the consent of guardians or legal representatives. Placement in closed settings without the consent of the individual concerned should always be considered a deprivation of liberty and subjected to the safeguards established under Article 5 of the European Convention on Human Rights. (emphasis mine).
As watchers of the deprivation of liberty safeguards will note, this definition of deprivation of liberty is much more expansive than that currently being employed in the domestic courts, and it’s interesting to see it used in a Council of Europe issue paper by such a legally and politically prominent figure as Thomas Hammarberg.
Note that in the case C v Blackburn with Darwen (2011) it was found that even where a person was objecting to their placement they were not deprived of their liberty (although personally I think this approach is incorrect with regards to the emphasis placed on objections in P & Q, 2011 and I wouldn’t be at all surprised if it was successfully appealed). If Hammarberg’s contention is right that Article 5 includes even people who aren’t objecting to their placement but who were unable to consent to it, and I feel that it is, then the direction of English case law on deprivation of liberty has gone very far wrong indeed. However, I suspect that the European Court of Human Rights (ECtHR) might take a more cautious approach than the Commissioner; certainly they did not take advantage of the ruling in Stanev v Bulgaria (2012) to define Article 5 in this way. The 39 Essex St newsletter (pdf) commented that the definition of deprivation of liberty in Stanev still ‘accepted that measures demonstrated to be necessary to protect life and limb (as in the Dodov case) may not amount to a deprivation of liberty’ and left room for interpretations like that used in Cheshire. Having said that, some European jurisdictions are taking a much more robust approach to judicial review of non-consensual placements in social care institutions than England and Wales currently are, including the Czech Republic and Russia, so perhaps it’s not entirely impossible the meaning of Article 5 could be expanded in this direction by the ECtHR. (Of course, ‘robust’ in the numerical sense of lots of judicial reviews may not mean that the quality of review is especially robust).
Another issue for the MCA in this paper, arising out of Article 12, is the support and safeguards for
decisions under the MCA. Hammarberg recommends that states:
7. Develop supported decision-making alternatives for those who want assistance in making decisions or communicating them to others. Such alternatives should be easily accessible for those in need and provided on a voluntary basis.
Although the MCA requires support for decision making, in practice provision of the services that could support decision making, like advocacy, are under threat (Action for Advocacy, 2011, pdf). IMCA services technically need only be provided where a person lacks capacity, but in some ways in might be more in keeping with Article 12 to make statutory advocacy available where a person has vulnerable decision making abilities. In practice, I know, many IMCA’s will be able to offer support to a person such that they are in fact able to make the decision, and the IMCA can help them to demonstrate that they have that capacity. IMCA’s of course are only available in relatively few circumstances, and whether or not an IMCA referral is made when it should be is another issue… IMCA’s themselves are counselled by the code of practice to provide information and guidance on the person’s “best interests” [10.4], which may not equate to advocating for what that person actually wants. I’ve always thought this is a bit bizarre, when the system envisioned by the MCA is already riddled with people worrying about P’s best interests, and I’m aware that some IMCA’s have interpreted their role as to make the best case possible for P’s expressed preference. Article 12 calls upon support for decision making to ‘respect’ the wishes and preferences of the person; whether that means ‘respect’ in the sense of ‘acknowledge’ (but potentially disregard) or ‘actually reflect and amplify’ their wishes and preferences is rather unclear in this and other official literature I have read on the topic. Surely somebody, somewhere, should be making the strongest possible case for what a person actually wants in order to test the case against that?
A related issue is safeguards. Although the direction of travel of Article 12 is towards supported decision making, I am going to discuss the safeguards offered by the MCA and so I will be discussing safeguards on substituted decision making. At a future point I want to write again about supported vs. substitute decision making, but it’s a very complex topic and I wanted to focus on the MCA today. Hammarberg recommends for states to:
Establish robust safeguards to ensure that any support provided respects the person receiving it and his or her preferences, is free of conflict of interests and is subject to regular judicial review. The individual concerned should have the right to participate in any review proceedings along with the right to adequate legal representation.
It strikes me that if you have a ‘traditional’ system of plenary guardianship, or something more like deputyship or an LPA, in certain respects it might be easier to build in safeguards for monitoring substitute decision making because it’s a single person. However, the ‘general defence’ mechanism of s5 and s6 MCA effectively ‘fractures’ the authority for different types of decisions, and hands it to a whole range of organisations and individuals, meaning it is much harder to keep track of and monitor who decides what. In fact, as the recently published Best Interests Decisions project showed, sometimes it’s not clear at all who is responsible for having made a particular ‘best interests’ decision. I have to say I’m not convinced this fragmentary approach is especially desirable, even if it is practical in certain situations. There is no obvious a priori reason why such a system of substitute decision making should be any less oppressive than one with a single authority. And there are reasons to think it could be more a more depersonalised and chaotic experience to have different welfare decisions made by multiple different, perhaps unconnected, individuals rather than one. Clearly systems of plenary guardianship where near strangers are appointed as guardians without regard to the quality of their relationship with the person are abhorrent, but there are other systems like the Representation Agreement Act 1996 (RAA) of British Columbia, which give people with even quite limited decision making abilities considerably more say over who makes decisions on their behalf. (I should say that my support for the RAA is qualified pending finding some decent research on the topic; all I’ve found so far is rather evangelical support and as Foucault says “everything is dangerous” and we need to know what the dangers of this particular approach are). Autism rights campaigner Amanda Baggs has recently discussed her use of an LPA-like system and contrasted it with guardianship systems here. But to return to the MCA, my point is essentially that just because we don’t use plenary guardianship doesn’t mean similar problems don’t pertain for our fragmentary approach, chiefly questions about who is empowered to make decisions, and the need for proper safeguards on substitute decisions, including scrutiny and contestibility of outcome.
So what ‘safeguards’ are built into the MCA for substitute decisions? It strikes me that what safeguards we have – application to the Court of Protection, a minimal degree of monitoring of formal care settings by CQC, complaints mechanisms – are not especially robust from the perspective of ensuring that people are not denied the opportunity to make decisions for themselves or participate to the greatest possible extent. The Court of Protection is a costly and lengthy procedure, and is in any case far, far more likely to be accessed by carers and professionals in dispute with each other than by the incapacitated (or supposedly incapacitated) party in their own right. There is no formal requirement for “regular judicial review”, as recommended by Hammarberg, under the MCA for any decisions bar authorisation of deprivation of liberty falling outside of the scope of the DoLS. Having said that, I’m personally unsure about lawyers’ enthusiasm for regular judicial review of substitute decisions. A judicial review approach shifts the focus onto ‘major’ decisions; whilst those are important I would stress that the vast majority of disempowering substituted decisions in a person’s life are likely to be the day to day things that courts would never consider. There are other possible forms of scrutiny and dispute resolution for substitute decision making that might be more local, more personal, more accessible, less culturally ‘legal’ and less resource intensive. Another danger is that if too much reliance is placed on the courts for review of decisions, they will be forced by limited judicial resources to effectively ‘rubber stamp’ rather than scrutinise them properly.
Which nicely brings me onto the last issue I wanted to raise from this paper: legal representation for incapacitated adults, and disputing assessments of incapacity or best interests decisions in court. Hammarberg writes:
Court proceedings concerning legal capacity relate to a person’s civil rights and must therefore comply with the fair trial guarantees of Article 6.1 of the European Convention. States Parties have a certain margin of appreciation to determine the procedural arrangements to ensure fair trail, but the minimum guarantees of Article 6 must be complied with. This means that the individual concerned has the right to participate in proceedings concerning his/her legal capacity. Given the individual’s dual role – as an interested party and, at the same time, the main object of the court’s examination – his/her participation is necessary “not only to enable him to present his own case, but also to allow the judge to form a personal opinion about the applicant’s mental capacity”.
It is not at all uncommon for the person at the heart of Court of Protection proceedings not to attend court, and in fact the Court of Protection Rules 2007 make provision for an incapacitated adult to be bound ‘as if’ a party without in fact being joined to proceedings and represented in his own right. I dont’ have any data on how common this practice is, but I do wonder if this will happen increasingly if the Official Solicitor is unable to act on behalf of ‘P’ as a result of his own resource limitations. Having said that, I know anecdotally that Court of Protection judges sometimes go to quite considerable lengths to meet ‘P’, and that many of them prefer to meet ‘P’ where at all possible. But the point stands that in England and Wales it is quite possible for an incapacitated adult to be bound by the outcome of a court hearing which he neither participated in nor was represented before. I am not sure this is entirely consistent with the readings of Article 6 that are influenced by Article 12 CRPD, like Stanev v Bulgaria.
I also wonder whether the role of litigation friends might not come in for additional scrutiny at some point in relation to Article 6 rights to a fair trial, given that litigation friends effectively function as gatekeepers for an incapacitated adults’ access to court to bring a dispute. The Court of Protection Rules 2007 require that P is represented by a litigation friend, and so if P wants to dispute that he has capacity in the Court of Protection or argue that a decision is not in his best interests, it is critical for him that he can find a litigation friend who will help him to bring that claim. I wonder, if P wishes to claim that he has capacity in order to exercise his right to make an unwise decision (s1(4) MCA), how easy that might be in practice? Potentially a litigation friend could ignore ‘P’ or a protected party’s assertions that he has capacity, or refuse to take forward a claim on P’s behalf, and it’s hard to see what accessible routes to challenge this are available to P (yes, yes, I know that there is provision to terminate the appointment of a litigation friend in the Civil Procedure Rules and the Court of Protection Rules, but in practice how is a person with borderline capacity, or indeed any person, supposed to do that without a) being informed of that right, and b) being supported to exercise it? Ask their MP to help…? History shows that hasn’t been a terribly effective strategy).
Viewed as a means to support P to exercise his legal rights, what “appropriate and effective” safeguards are there on the conduct of litigation friends as required by Article 12(4)? It strikes me that there is very little guidance (formal or otherwise) on how litigation friends should conduct proceedings on behalf of P or a protected party, indeed litigation capacity hasn’t even got a practice note on the Law Society’s webpages! (The one that is there concerns mental health tribunals and it’s an interesting question why the threshold for taking instructions from one’s client in mental health work seems to be so much lower than in other areas). How robust are the safeguards for the decisions made by litigation friends, I wonder? Who is responsible for scrutinising and monitoring them – are solicitors under such a duty? Certainly no explicit mention of this is made in their regulatory codes. Are the courts? And are their decisions appropriately open to contest? If litigation friends themselves are gatekeepers to bringing issues before the court, and if they are also required to make their own assessments of P’s capacity and best interests, how can a P challenge their assessments and decisions without enlisting their support to do so? It strikes me that it very much depends upon their discretion and good faith, and I can find no professional or official guidance on this matter. I don’t want to suggest that litigation friends as individuals are inherently suspicious, my encounters with them suggest they are highly motivated by the rights of those they act for, but the point is that if they weren’t there would be a serious problem. My concern about this is structural and procedural, not personal It is true that the court has to ensure litigation friends must be able to ‘fairly and competently conduct proceedings’ and have no adverse interest, but that seems to me to be a rather week safeguard and to gloss over the complexities of the decisions they must take. Neither does it resolve the question of how we can ensure that the decisions of litigation friends about capacity and best interests can reliably be challenged in court like anybody else’s.
The domestic approach to litigation capacity will eventually be scrutinised by the ECtHR in the case RP v UK, with an intervention by the Equality and Human Rights Commission. In its recent ruling in Stanev v Bulgaria (2012), the ECtHR found that the discretion of a third party effectively functioning as a gatekeeper for access to justice for adults who are said to lack capacity was problematic with respect to Article 6 (see, e.g., paragraphs 176-7, 237, and the final paragraph of Judge Kalaydjieva’s dissenting opinion). It is possible that a similar concern about the discretion of litigation friends might be raised before the court in RP v UK. In the eyes of Hammarberg, denial of legal capacity is as serious a matter as deprivation of liberty, and yet we seem barely even to have woken up to the significant human rights issues around litigation capacity and access to justice in England and Wales. Denial of legal capacity may be a fragmentary and often informal affair under the MCA because we don’t use plenary guardianship, but that may not alter the very real difficulty an adult who is said to lack capacity in relation to a particular matter could have in challenging decisions made upon their behalf.