Welcome to the February 2016 Newsletters. Highlights this month include:
- In the Health, Welfare and Deprivation of Liberty Newsletter: Article 5, best interests and the COP; 16 and 17 year olds and deprivation of liberty; and the views of the Official Solicitor on ‘using and weighing’;
- In the Property and Affairs Newsletter: EPAs and gratuitous care; the CICA and the COP; and the perils of putting oneself forward as panel deputy;
Alex Ruck Keene Victoria Butler-Cole Neil Allen
Annabel Lee Anna Bicarregui
Simon Edwards (P&A)
Guest contributor Beverley Taylor
Scottish contributors Adrian Ward
- In the Practice and Procedure Newsletter: the transparency pilot and how to survive it;
- In the Capacity outside the COP Newsletter: the National Mental Capacity Action day and how to take part; capacity and organ donation; and legislative developments both sides of the border in Ireland;
- In the Scotland Newsletter: Scottish Government consults on a review of the AWI; two important MWC reports and an obituary of Ian McMurray
And remember, you can now find all our past issues, our case summaries, and much more on our dedicated sub-site here. ‘One- pagers’ of the cases in these Newsletters of most relevance to social work professionals will also shortly appear on the SCIE website.
ENGLAND, WALES AND NORTHERN IRELAND
Baroness Finlay will host a National Mental Capacity Action Day on 15 March 2016 at the Royal College of Anaesthetics. The event will:
- Profile current best practice from around England and Wales
- Identify MCA improvement priorities for the coming year
- Gather commitments from attendees for projects and work to improve MCA implementation at the front-line.
Ahead of the Action Day, Baroness Finlay would like to hear from anyone who over the last year has been involved in work to raise awareness and improve the implementation of the MCA. This does not have to be a large programme of work. There are some very small projects that are making a difference and there are others across sectors that are changing approaches nationally.
If you would like to attend the event, please express your interest when you return your submission as described above. A copy of the submission template and further details about the event are available online.
New website to make creating advance decisions and statements easier
Compassion in Dying has launched an innovative free website in response to growing concerns about the low numbers of individuals planning ahead for their treatment at the end of life should they lose capacity.
The first free website of its kind in the UK, www.mydecisions.org.uk allows a person to draft an Advance Decision or Advance Statement online.
Designed in collaboration with patients, clinicians and lawyers, the website takes users through different conditions and scenarios they may experience, such as brain injury, dementia and terminal illness. People are prompted to consider what they would want in these situations, and then get a personalised Advance Decision or Advance Statement to print, sign, witness and share.
MyDecisions.org.uk has been designed with patients for patients, to make it as straightforward as possible. It offers comprehensive guidance throughout and users can save their progress and return to it later to allow them to consider and talk to others about their wishes.
This Guideline was published on 16 December 2015. It responds to the need for an evidence- based approach to the care of dying people following the phasing out in 2014 of the use of the controversial Liverpool Care Pathway for the Care of the Dying Adult (LCP).
The LPC, developed in the 1990s, was widely used in the NHS and UK hospices. Although the aim of the LCP was to provide the best quality of care possible for dying patients in the last days and hours of life, whether they were in hospital, at home, in a care home or in a hospice, it met with increasing criticism from the public, healthcare professionals and the media. The independent 2013 Neuberger Review of the LCP highlighted three main areas of concern:
- the assessment that a person was dying was not always made by an experienced clinician and was not reliably reviewed
- the dying person may have been unduly sedated as a result of poor prescribing methods
- there were claims that hydration and some essential medicines may have been withheld, which may have a negative impact on the dying process
The NICE Guideline attempts to address in detail the aspects of the LCP that have been criticised. It covers the clinical care of adults (18 years and over) who are dying during the last 2 to 3 days of life. It. It is focused on the care needed when a person is judged by a multi-professional clinical team to be within a few days of death. It is intended for use by health and social care professionals who do not have specialist level training in end of life care and by people who are dying, their families, carers and other people who are important to them. The Guideline states clearly that it complements, but does not replace the healthcare professional and others’ duty to comply with the Mental Capacity Act 2005.
The guideline makes a number of
recommendations to help healthcare professionals to:
- recognise when a person in entering the last days of life, or may have stabilised or be improving even temporarily;
- to communicate and share decisions respectfully with the dying person and people important to them; and
- to manage hydration and commonly experienced symptoms to maintain the person’s comfort and dignity without causing unacceptable side effects.
Poor communication and not recognising that people are dying were key themes identified by the parliamentary and Health Service Ombudsman’s 2015 Dying with Dignity investigation into complaints about end of life Care.
The Guideline’s emphasis on shared decision- making is to be welcomed. This includes considering the person’s ability to engage and actively participate in shared decision making on their end of life care and establishing the level of involvement that the person wishes to have in those decisions. It further emphasises the need to ascertain whether the person has an advance statement or an advance decision to refuse treatment in place, or has provided details of any lasting power of attorney for health and welfare.
Improved communication, together with earlier recognition that a person is nearing the end of their life, proactive care planning and clear direction on the withdrawal of hydration, nutrition or medication should ensure that many more people experience good care at the end of their lives.
The challenge will be for the NHS to translate this Guideline into a clear and simple protocol, which not only meets the required care standards, but also allows staff the time to train and to work through these matters with the patient and other people who are important to them in the time available.
The Alzheimer’s Society (“the Society”) has launched a new campaign, Fix Dementia Care after a series of Freedom of Information requests to NHS Trusts in England and responses from over 570 people affected by dementia revealed what the Society described as “unacceptable national variation in the quality of hospital care across England”. The survey found that 92% of people affected with dementia found hospital environments frightening. The FOI requests also found that in some hospitals people with dementia were being inappropriately discharged at night, that the number of falls in hospital for people over the age of 65 who had dementia varied dramatically across NHS Trusts (in one hospital 71% of people over the age of 65 who fell in hospital had dementia compared to the national average of 28%) and that in the worst performing hospitals, people with dementia were found to be staying 5 to 7 times longer than other patients over the age of 65. The Society noted that there were notable examples of excellent care across the country but that the difference between one hospital and the next was far too great and there was inconsistent understanding of the needs of people with dementia.
Over the course of 2016, Fix Dementia Care will look at the quality of care people with dementia receive in 3 key care settings: in hospital, in care homes and in the home. The campaign is making
the following recommendations: (i) all hospitals to publish an annual statement of dementia care, which includes feedback from patients with dementia, helping to raise standards across the country; (ii) the regulators, Monitor and the CQC to include standards of dementia care in their assessments. The society is asking people to back the Fix Dementia Care campaign by signing up at: www.alzheimers.org.uk/fixhospitalcare.
The Human Transplantation Wales Act 2013 came into effect on 1 December 2015, making Wales the first nation with the United Kingdom to introduce a soft opt-out system for organ and tissue donation. If you are 18 and over and have lived in Wales for more than 12 months you will be deemed to consent to organ and tissue donation if you die in Wales. If you wish to opt- out of the deemed consent you have to complete an online form or call 0300 123 23 23.
People who lack capacity to understand the new system will not have their consent deemed and the system does not apply to people who never had the capacity to understand deemed consent (the example given being those with severe learning disabilities). It also does not apply to those who have developed a condition that stops them understanding the system such as dementia. There is also a requirement that you live in Wales voluntarily. Hence the guidance states therefore that serving members of the armed forces or prisoners will not have their consent deemed but the exemption would also logically apply to those deprived of their liberty and placed in accommodation in Wales by an English authority.
It follows that care givers and institutions in
Wales should turn their minds to whether those in their care have capacity to understand the notion of deemed consent to organ and tissue donation. It is unclear from the online guidance how decisions will be taken about capacity at the relevant (highly charged) time. Whilst in some cases it may be clear that the person lacked capacity (due to advanced dementia or other readily ascertainable factors) in other cases the issue of capacity may be contentious or simply unclear. In such cases it is likely that deemed consent would not be presumed (there is an exception where a person has not opted out but has told someone that they object prior to death). However, it may be that if a family member of a person who lacks capacity feels strongly about organ donation, a formal consideration of capacity should be carried out and where that person lacks capacity the opt out option is completed.
SCIE has now published guidance to assist authorities in the UK (England, Scotland, Wales and Northern Ireland) involved in cross-border placements as described in Schedule 1 to the Care Act 2014. As discussed in the December 2015 Scotland Newsletter, the issues that arise in relation to such placements are only getting more complex as the law on ordinary residence (at least as between Scotland on the one hand and England and Wales on the other) seems to become ever more divergent. This guidance is a very helpful guide to the core principles and processes, although we suspect that the issues in this area will be the subject of increasing amount of litigation.
Statutory Guidance on Controlling or Coercive Behaviour in an Intimate or Family Relationship has now been issued to accompany the new offence created by s.76 Serious Crime Act 2015. The new offence is one that is of potential application in many safeguarding cases in which mental capacity issues arise, and the guidance provides a helpful (non-exhaustive) list of indicative behaviours associated with coercion or control, reminding practitioners that the types of behavior may or may not constitute a criminal offence in their own right. The list includes the following, many of which may well be present in safeguarding cases with which local authorities are grappling:
- isolating a person from their friends and family;
- depriving them of their basic needs;
- monitoring their time;
- monitoring a person via online communication tools or using spyware;
- taking control over aspects of their everyday life, such as where they can go, who they can see, what to wear and when they can sleep;
- depriving them of access to support services, such as specialist support or medical
- repeatedly putting them down such as telling them they are worthless;
- enforcing rules and activity which humiliate, degrade or dehumanise the victim;
- forcing the victim to take part in criminal activity such as shoplifting, neglect or abuse of children to encourage self-blame and prevent disclosure to authorities;
- financial abuse including control of finances, such as only allowing a person a punitive allowance;
- threats to hurt or kill;
- threats to a child;
- threats to reveal or publish private information (e.g. threatening to ‘out’ someone).
- criminal damage (such as destruction of household goods);
- preventing a person from having access to transport or from working.
Luke Clements, now Cerebra Professor of Law at Leeds University, has updated his extremely helpful Care Act briefing, available here.
The Mental Health Foundation has recently updated its incredibly helpful mental health database, with entries ranging from alcohol and mental health to work life balance. It can be accessed here.
Aspects of the Mental Capacity Act 2005 feature in the Law Commission’s proposal, and draft Bill, to reform the outdated law on fitness to plead in criminal proceedings. It provides a test of capacity for effective participation in a trial which explicitly incorporates decision-making capacity. Such incapacity is established where the defendant’s abilities are not, taken together, sufficient to enable the defendant to participate effectively in the proceedings on the offence or offences charged.
There are a number of abilities to consider and a statutory entitlement for a defendant to have the assistance of an intermediary, both for the giving of evidence and otherwise in trial proceedings, where such assistance is necessary for a defendant to have a fair trial. The proposal draws from the functional test of the Mental Capacity Act 2005 (without a diagnostic criterion). Where the defendant lacks capacity to participate effectively, a judicial discretion not to proceed to a hearing is proposed if that is in the interests of justice.
A separate test of ability to plead guilty is proposed for defendants who would otherwise lack the capacity to participate effectively in trial. This would enable those defendants who would otherwise be diverted into alternative procedures to plead guilty and be sentenced in the usual way, where they are able and wish to do so. Another important proposal is that where the fact-finding hearing proceeds, the prosecution will be required to prove all elements of the offence; so not just the guilty act but also the guilty mind.
At its meeting on 25 January 2016, the Ad Hoc Joint Committee to Consider the Mental Capacity Bill agreed to publish its Report on the Bill which can be found here.
A brief refresher about some of the background and scope of the draft Bill – which came through in broad terms in the Bill now under scrutiny, can be found here.
The Bill mostly survived the review stage
unscathed, the key issues identified by the Committee as problematic being the following (reproduced from the Executive Summary):
- . The first key issue concerned the Department’s decision to recognise but not codify advance decisions within the Bill, but rather to leave the matter to common law. Stakeholders believed that an opportunity had been missed to create more clarity and certainty for both individuals and professionals as to what constitutes an effective advance decision. The Committee was concerned with the Department’s approach of allowing case law to develop once the Bill is in place, rather than set the policy itself. In the Committee’s view, this would leave patients and healthcare professionals in a vulnerable and uncertain position. The Committee therefore asked the Department to bring for-ward a “review and report” amendment, which would require the Department to review the law on advance decisions and to lay a report before the Assembly. The Department accepted the Committee’s rationale and drafted an amendment which would require this to happen within three years of the Bill coming into operation.
- . The second key issue related to the Department’s approach to Lasting Powers of Attorney (LPA) and Enduring Powers of Attorney (EPA). The Bill will create a new system of LPAs which cover decisions relating to a person’s health, welfare and finances. It will also prevent any further EPAs, which relate to a person’s property and affairs, being made once the Bill comes into operation. The Committee was concerned that given the potential complexity and costs associated with making an LPA, many people would simply not make one. It was therefore of the view that the EPA system should be allowed to remain in place, to allow people a wider range of options in terms of planning for their future needs. The Committee therefore agreed to register its
opposition to clause 110.
5. The third issue related to the conditions for detention under a Public Protection Order (PPO) within the criminal justice provisions of the Bill. Public Protection Orders are being created through the Bill to deal with people who are not culpable for their actions, but cannot be released because they pose a danger to others. The Bill as drafted stipulated that for someone to be subject to a PPO, he or she had to pose a risk of “serious physical harm to other persons”. The Committee was concerned that this criterion may not always be met, even when the crime committed would be deemed to be serious, but had not resulted in “serious physical harm” to the victim. The Department recognised that this was a potential loophole and proposed a range of amendments to the Bill, so that the risk a person poses in terms of “serious physical or psychological harm” to others must be considered in relation to PPOs.
- . The fourth issue was the Department’s
powers to make further provision by means of secondary legislation. As drafted, the Bill permitted the Department to amend any part of the Act by secondary legislation. The Committee was of the view that this power was too wide-ranging. The Department accepted the Committee’s viewpoint and drafted amendments to limit the power to amend the Act to Part 2, and to require that powers to amend any other pieces of legislation as a consequence of the Act would be done through the draft affirmative procedure.
- . The fifth issue was that of the costs associated with the Bill, which are estimated at between £76 to £84 million for year one implementation costs, and £68 to £76 million for recurrent costs. The Committee was seriously concerned about the lack of certainty in terms of whether the monies required will
be forthcoming from the Departments and the Executive, given the current financial climate.”
EUROPE AND THE WIDER WORLD
Almost (but not quite) as long in gestation as the Northern Ireland Bill, the Irish Assisted Decision- Making (Capacity) Act was signed into law on 30 December 2015. It represents an ambitious attempt to bring the law in the Republic of Ireland out of (at best) the 19th century into the 21st century by seeking to implement many of the core tenets of the CRPD. Whether (a) it has entirely succeeded; (b) the culture change that will be required in order to translate its principles into action are both still questions that are very much open to debate.
Readers may be interested to note the report in the Guardian that France has passed a law sedated dying law as compromise on euthanasia. The law will allow patients to request “deep, continuous sedation altering consciousness until death” but only when their condition is likely to lead to a quick death. Doctors will be allowed to stop life-sustaining treatments, including artificial hydration and nutrition. Sedation and painkillers will be allowed “even if they may shorten the person’s life.” The Guardian reports that law will also apply to patients who are unable to express their will, following a process that includes consultation with family members.
The Council of Europe is undertaking a review of the implementation of Recommendation (2009)11 “on principles concerning powers of attorney and advance directives for incapacity” throughout member states as a project for the calendar years 2016 and 2017. The review is to be carried out by Adrian Ward, our Scots co- editor, and we wish him very well in this task, which represents an important opportunity both to take stock of practice as it stands and to advance proposals to reform practice for the future, including – in particular – securing better cross-border recognition of powers of attorney.
The 4th World Congress on Adult Guardianship will be held under the auspices of the German Federal Minister of Justice and Consumer Protection, Heiko Maas, in Erkner near Berlin between September 14 and September 17, 2016. It is hosted by the German Adult Guardianship Law Association (Betreuungsgerichtstag e.V.) in collaboration with the International Guardianship Network (‘IGN’). The organizing committee consists of Prof. Dr. Volker Lipp (President of the German Adult Guardianship Law Association, Member of the IGN), Prof. Dr. Dagmar Brosey (Vice President, Member of the IGN) and Karl-Heinz Zander (Secretary, Member of the IGN). The organizing committee is supported by an International Advisory Board and by the IGN. For more information and to register, click here. Alex already has his ticket…
As readers may know, the Mental Capacity Act in Singapore is very closely modelled upon the MCA 2005. Amendments have been proposed to the Act in particular to allow the appointment of professional attorneys and deputies, and in light of the support received during consultation, it is likely that these will be taken forward in due course. More details can be found here.
On January 11, 2016, the LCO released its Interim Report on Legal Capacity, Decision-making and Guardianship for public feedback. The Interim Report includes draft recommendations designed to respond to concerns about Ontario’s laws addressing situations where decisions are needed but decision-making abilities are at issue. The LCO encourages feedback until Friday, March 4, 2016.
International Protection of Adults
Alex and Adrian will be participating in a seminar at the British Institute of International and Comparative Law on 11 February on Hague 35 and cross- border matters. More details are available on the BIICL website.
Alex will be chairing a session at the opening conference of this innovative
Alex Ruck Keene Victoria Butler-Cole Neil Allen
Annabel Lee Anna Bicarregui
Simon Edwards (P&A)
Guest contributor Beverley Taylor
Scottish contributors Adrian Ward
project launched by the Centre for Disability Law and Policy at NUI Galway entitled Voices of Individuals: Collectively Exploring Self-determination
(VOICES). The opening conference is on Friday 26 February 2016 in Dublin City Civic Offices, Dublin 8. Confirmed Speakers include: Professor Gábor Gombos, Mr Rusi Stanev, The Honorable Kristin Booth Glen, Professor Michelle Anderson and Professor Christopher Slobogin. For more details of this project, and to book, see here.
Palliative Care Conference
Alex will be speaking on the practicalities and realities of DOLS within palliative care practice at the 11th Palliative Care Congress in Glasgow on 11 March. For details, and to book see here.
Safeguarding Adults in Residential Settings
Edge DOLS Assessors conference
Alex will be speaking at Edge Training’s annual DOLS Assessors conference in London on 18 March. Other speakers include Mr Justice Peter Jackson. To details, and to book, see here.
and training events
If you would like your conference or training event to be included in this section in a subsequent issue, please contact one of the editors. Save for those conferences or training events that are run by non-profit bodies, we would invite a donation of
£200 to be made to Mind in return for postings for English and Welsh events. For Scottish events, we are inviting donations to Alzheimer Scotland Action on Dementia.
ESCRC seminar series on safeguarding
Alex is a member of the core research team for an-ESRC funded seminar series entitled ‘Safeguarding Adults and Legal Literacy,’ investigating the impact of the Care Act. The theme for the seminars in the first year of this three years series is ‘Making Law’. The second and third seminars in the series will be on “New” categories of abuse and neglect’ (20 May) and ‘Safeguarding and devolution – UK perspectives’ (22 September). For more details, see here.
Peter Edwards Law Training Spring 2016
Peter has announced the spring series of his (rightly) very well-regarded series of training events on matters mental capacity and mental health related. For full details, see here.
Our next Newsletter will be out in early March. Please email us with any judgments or other news items which you think should be included. If you do not wish to receive this Newsletter in the future please contact firstname.lastname@example.org.
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Alex Ruck Keene Victoria Butler-Cole Neil Allen
Annabel Lee Anna Bicarregui
Simon Edwards (P&A) Scottish contributors
Adrian Ward Jill Stavert
CoP Cases Online
Use this QR code to take you directly to the CoP Cases Online section of our website
Alex Ruck Keene: email@example.com
Alex is recommended as a ‘star junior’ in Chambers & Partners 2016 for his Court of Protection work. He has been in cases involving the MCA 2005 at all levels up to and including the Supreme Court. He also writes extensively, has numerous academic affiliations and is the creator of the website www.mentalcapacitylawandpolicy.org.uk. He is on secondment for 2016 to the Law Commission working on the replacement for DOLS. To view full CV click here.
Victoria Butler-Cole: firstname.lastname@example.org
Victoria regularly appears in the Court of Protection, instructed by the Official Solicitor, family members, and statutory bodies, in welfare, financial and medical cases. Together with Alex, she co-edits the Court of Protection Law Reports for Jordans. She is a contributing editor to Clayton and Tomlinson ‘The Law of Human Rights’, a contributor to ‘Assessment of Mental Capacity’ (Law Society/BMA 2009), and a contributor to Heywood and Massey Court of Protection Practice (Sweet and Maxwell). To view full CV click here.
Neil Allen: email@example.com
Neil has particular interests in human rights, mental health and incapacity law and mainly practises in the Court of Protection. Also a lecturer at Manchester University, he teaches students in these fields, trains health, social care and legal professionals, and regularly publishes in academic books and journals. Neil is the Deputy Director of the University's Legal Advice Centre and a Trustee for a mental health charity. To view full CV click here.
Annabel Lee: firstname.lastname@example.org
Annabel appears frequently in the Court of Protection. Recently, she appeared in a High Court medical treatment case representing the family of a young man in a coma with a rare brain condition. She has also been instructed by local authorities, care homes and individuals in COP proceedings concerning a range of personal welfare and financial matters. Annabel also practices in the related field of human rights. To view full CV click here.
Anna Bicarregui: email@example.com
Anna regularly appears in the Court of Protection in cases concerning welfare issues and property and financial affairs. She acts on behalf of local authorities, family members and the Official Solicitor. Anna also provides training in COP related matters. Anna also practices in the fields of education and employment where she has particular expertise in discrimination/human rights issues. To view full CV click here.
Simon Edwards: firstname.lastname@example.org
Simon has wide experience of private client work raising capacity issues, including Day v Harris & Ors  3 WLR 1560, centred on the question whether Sir Malcolm Arnold had given manuscripts of his compositions to his children when in a desperate state or later when he was a patient of the Court of Protection. He has also acted in many cases where deputies or attorneys have misused P’s assets. To view full CV click here.
Adrian Ward email@example.com
Adrian is a practising Scottish solicitor, a consultant at T C Young LLP, who has specialised in and developed adult incapacity law in Scotland over more than three decades. Described in a court judgment as: “the acknowledged master of this subject, and the person who has done more than any other practitioner in Scotland to advance this area of law,” he is author of Adult Incapacity, Adults with Incapacity Legislation and several other books on the subject. To view full CV click here.
Jill Stavert: J.Stavert@napier.ac.uk
Professor Jill Stavert is Reader in Law within the School of Accounting, Financial
Services and Law at Edinburgh Napier University and Director of its Centre for
Mental Health and Incapacity Law Rights and Policy. Jill is also a member of the
Law Society for Scotland’s Mental Health and Disability Sub-Committee, Alzheimer
Scotland’s Human Rights and Public Policy Committee, the South East Scotland
Research Ethics Committee 1, and the Scottish Human Rights Commission
Research Advisory Group. She has undertaken work for the Mental Welfare
Commission for Scotland (including its 2015 updated guidance on Deprivation of
Liberty). To view full CV click here.