The Best Interest Assessment and Legal Framework under the Mental Capacity Act 2005: A Case Study of Sonia's Situation

Introduction

The best interest assessment of a person needs to be done in a situation where the person lacks capacity to make decisions for themselves as per the Mental Capacity Act 2005 (MCA 2005). The scenario, which is considered in this essay concerns such a situation regarding a 19 years old girl, Sonia, who may be self-harming or may be abused by a third party. Here, the mother and teachers of the girl have failed to report such behaviour.

The local authority has determined that Sonia should not be returned to her mother. This essay discusses the legal framework that is applicable to the scenario, for which purpose, the first part of the essay discusses the relevant provisions of the MCA 2005 as well the Deprivation of Liberty Safeguards (DOLS). The principal legislative provisions applicable here are under the MCA 2005, Schedules 1A and 1B and sections 4A and 4B.

As the DOLS framework basically deprives a person of his liberty, it engages the European Convention of Human Rights (ECHR), article 5, which is the principal human right to liberty and security of person. Therefore, the application of DOLS has come under some criticism, which will be discussed in the second part of the essay.

The MCA 2005 and its applicability to the scenario

2.1 Defining lack of capacity under the MCA 2005

The MCA 2005 defines a person who lacks capacity as someone who is unable to make a decision for himself in relation to a matter because of an impairment in the mind or brain or any disturbance in the mind or brain. This impairment need not be permanent and can be an impairment at the material time when the decision needs to be made (MCA 2005, s.2).

Sonia is restricted by severe learning disabilities and also has autism spectrum disorder (ASD). The National Health Services (NHS) clarifies that adults with ASD may have “the capacity to make some simple decisions (for example, to decide what items to buy at the local shop), but lack capacity to make other decisions (for example, making decisions about complex financial issues)” (NHS, 2016). As per this definition, Sonia can be said to lack capacity to make decisions for herself.

It is not necessary that each case of autism in adults would come within the purview of the MCA 2005 (NHS, 2016). There will be some adults who have ASD, but are capable of making complex decisions for themselves. On the other hand, other adults with the same disorder may not be able to make such decisions. In such cases, if it is in their best interest that decisions be made for them, then these adults will come within the purview of the MCA 2005. However, a person who suffers from a severe learning disability or autism, may come within the purview of the MCA 2005 (NHS, 2016). Sonia has both these problems.

2.2 Determining lack of capacity

The determination of a person’s lack of capacity under the MCA 2005 is to be done by the relevant authorities as per the tests that are laid down by the MCA 2005 itself and the courts. This section discusses the tests that are laid down for such a determination and discusses the applicability of these tests to the given scenario.

The determination to bring someone under the purview of the MCA 2005 will generally depend on the satisfaction of the two stage test, which is given under the MCA 2005, s.2. The first stage requires the determination of whether there is an impairment or disturbance in the mind or brain of the person. The second stage requires the determination of the impact of such impairment or on the individual’s ability to make decisions (NHS, 2015). Therefore, MCA 2005 will apply only if there is an impairment affecting the brain to the extent that the person who is impaired is not capable of making decisions for himself anymore.

In P v Cheshire West and Chester Council and another and P and Q v Surrey County Council, [2014] UKSC 19, the Supreme Court clarified the nature of the “acid test” for what constitutes a deprivation of liberty. Three elements, each of which is essential, must be seen in a case for DOLS to be authorised. First, the person must lack the capacity to consent to their care or treatment arrangements. Second, the person must be under a continuous supervision and control of the third party. Third, such a person should not be free to leave on its own. If all these three elements are present, the care home can ask for DOLS authorisation from the local authority.

In the present scenario, Sonia lacks capacity to consent to her treatment and care arrangements, therefore the first condition is satisfied. She is also under a continuous supervision of either her mother or her teachers at her specialist school. However, the third condition is not satisfied because Sonia lives with her mother and not in a care home. Therefore, the Local Authority must get the authorisation from the Court of Protection as per the provisions of the MCA 2005. As is evident, the Local Authority did not apply from such a authorization and made the decision on its own.

2.3 Effect of determination of lack of capacity – The DOLS framework

Where an impairment is found and is also found to affect the person’s decision making ability, the MCA 2005 also applies to allow the deprivation of liberty of the person concerned. The DOLS framework can be used by either the Local authority or the Court of Protection, which are the only two authorities with power to allow the DOLS process. In extreme cases, where it is in the best interest of the person concerned, the DOLS process can also allow detentions of persons.

DOLS process is resultant of an amendment to the Mental Capacity Act 2005. The DOLS process is applicable only in England and Wales, therefore, Sonia’s case will fall under this process and it may be applied to her if the relevant tests are satisfied. These tests are discussed in this section.

The DOLS process allows the use of restraint and restrictions if such restrictions are in a person's best interests. It is noteworthy that the DOLS process can only be applied by the Local Authority if the person will be deprived of their liberty in a care home or hospital. If the person is not in the care of a care home or hospital, then the Court of Protection can authorise a deprivation of liberty.

In this case, the Local Authority did not go through the Court of Protection at all. It is also relevant to consider the role of the Court of Protection and how it may impact the scenario. The Court of Protection can be approached by Sonia’s mother against the decision made by the Local authority for applying DOLS to Sonia’s case.

2.4 Applicability of ECHR

The European Convention of Human Rights (ECHR) is applicable here because any deprivation of liberty has to satisfy the provisions and jurisprudence of the ECHR.

Article 8 provisions are applicable because this protects Sonia’s right to family life. The ECHR, article 5 is of particular importance here because this provision relates to the right to liberty. Specifically, the right provides:

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law” (ECHR, article 5 (1)).

Therefore, first and foremost, the ECHR, article 5 protects the right to liberty of every person. However, as the language of the provision makes clear, this is not an absolute right and it can be restricted as per the procedure established by the law. Particularly, the provision provides for “the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants” (ECHR, article 5 (1) (e)). Therefore, within the provisions of the ECHR, such detentions are authorized.

In Sonia’s case, there are signs and bruises that may reflect on the neglectful behaviour of the mother or abusive behaviour on the part of someone. This may even be self-abusive behaviour, as Sonia has been seen by the teachers to hurt herself. In case of adult safeguarding, this is a sign of possible physical abuse (SCIE, 2015). However, the important aspects of how these bruises came to be on Sonia, that is, that the bruises were self-inflicted, was not informed to the GP.

In a similar case, Somerset v MK (Deprivation of Liberty: Best Interests Decisions: Conduct of a Local Authority), [2014] EWCOP B25, the Local Authority processed a home living person’s deprivation of liberty without the authorization from the Court of Protection, and the important aspects of the injury to the person (self-inflicted), were not informed to the Local Authority. The court held that the deprivation of liberty by the Local Authority was violative of ECHR and depicted the systematic failure of the Local Authority.

Deprivation of Liberty Safeguards – Critical Analysis

3.1 Arbitrary application of DOLS

After the decision of the Supreme Court in P v Cheshire West and Chester Council and another and P and Q v Surrey County Council, [2014] UKSC 19, DOLS applications have risen approximately ten-fold. In the year prior to the judgment, that is, 2013, there were approximately 13,700 applications. In the year after the judgement, that is, 2014/15 there were 137,540 (DOH, 2015). This is a little more that 10 times increase in the applications for DOLS. This is a large number of applications and it has put a lot of pressure on the local authorities.

It is seen that there are number of safeguards in place to ensure that the DOLS process is not applied in an arbitrary or overly restrictive manner without there being a justifiable cause. These safeguards are discussed in the following section. The most important aspect is that such a person needs to be deprived of their liberty, in their best interests, to prevent harm to themselves in a manner that is necessary and proportionate to the risks.

The report prepared by Dr Keogh states that: “the bruising is felt to be comparable with a blow/blows to Sonia’s anterior chest with a significant force or fall onto an object. This would be an unusual injury pattern to have been self-inflicted but if this was the case then it would be expected that such self-harm, which would have been demonstrably significant and painful, would have been witnessed” (Scenario). However, Dr. Keogh does not have access to any information as to the history of self-harming by Sonia. Therefore, his report is not a correct representation of facts that have ultimately led to the application of DOLS to Sonia.

The Mental Health Act Code of Practice (2015) provides the five overarching principles, which should be considered while making decisions with respect to support or treatment care (Jackson, 2016). It is important that the least restrictive option and maximizing freedom should be chosen if a person can be treated without detaining them. Therefore, the focus is on avoidance of restriction. Second, empowerment and involvement of families, carers, and other responsible people is required. This would mean that instead of taking children or adults that need safeguarding away from their families, involvement of families must be encouraged. Third, it is important that the respect and dignity for the patients and their families is also maintained. Fourth, purpose, effectiveness, best practices must guide the application of DOLS process. Fifth, services should come together in providing efficiency and equity (Jackson, 2016, p. 324). These factors are missing in Sonia’s case as the decision made by the Local Authority does not consider the wishes of Sonia’s mother.

3.2 Availability of safeguards to offset concerns about arbitrary application of DOLS

The Deprivation of Liberty Safeguards (DOLS) provide legal protection for those vulnerable people who are, or may become, deprived of their liberty under the MCA 2005. This engages the right to liberty and security within the meaning of Article 5 of the European Convention of Human Rights (ECHR). First, it is noteworthy that the safeguards exist to provide a proper legal process and suitable protection in those circumstances where deprivation of liberty appears to be unavoidable as well as in a person’s best interests. Therefore, the provision is made in the best interest of individuals who lack capacity to make decisions about how they are to be treated in a care setting.

Second, there are a number of safeguards that are meant to ensure that the application of DOLS is not in a manner that leads to arbitrary deprivation of liberty or denial of society of one’s family. Therefore, there are five key principles of the MCA 2005 that are to be followed as safeguards. These principles are (Richards & Mughal, 2015):

• A person must be presumed to have capacity unless it is proved otherwise. Therefore, there will onus on the person claiming lack of capacity to prove it.
• Until all practical steps have been taken to help someone make a decision without success they cannot be treated as lacking capacity.
• If a person makes an unwise decision, that by itself does not indicate a lack of capacity.
• Decision made under the DOLS must be in the best interests of the person.
• The person making the decision should choose the least restrictive option.

Thus, as is clear, DOLS is not meant to be arbitrary or restrictive in nature. Rather it is in the nature of a support provider for those people who cannot make a decision for themselves and come within the purview of the MCA 2005. Nevertheless, by providing for these guidelines there is an ensuring of decision making by the person concerned or by his family.

Other safeguards are in the nature of eligibility of the person in whose interest DOLS is applied. Such a person should be over the age of 18 years and must be proved to be suffering from a mental disorder. This includes people suffering from learning disabilities or autism (in Sonia’s case, she has both). It is important that such a person should be lacking capacity to make decisions about their treatment and being in hospital. For this, such an assessment has to be made. Furthermore, there should not be overlapping of other laws or orders that may clash with the DOLS process under the MCA 2005. Thus, there should not have any other existing authority for decision making in place, which specifically excludes elements of the treatment plan that constitutes a deprivation of liberty and such a person should not be detained under the Mental Health Act or on leave from the Mental Health Act.

3.3 Criticism

The DOLS process has been subject to a lot of criticism by the judiciary, Law commission, and academics (Jackson, 2016, p. 341).

There is criticism of the DOLS also on the basis of its structure and form with the detail being excessive “and the drafting often borders on the incomprehensible, even to lawyers experienced in statutory interpretation” (Bartlett, 2014). This refers to the fact that parts of the DOLS as amended and put in the Mental Capacity Act 2007, are ambiguous and suffer from bad drafting, making these parts incomprehensible. In fact, the Law Commission itself had asked the government to go back to redraft the DOLS process so that it is more in line with the ethos of the MCA 2007 (Godefroy, 2015, p. 136).

The government itself has responded to criticism on DOLS by extolling the benefits of the process. It has said that DOLS should be regarded as a “hugely positive tool that shines a light on the circumstances of an individual’s care to determine of the individual’s deprivation of liberty is necessary to deliver the care envisaged and in the best interests of the individual” (Richards & Mughal, 2015).

Brenda Hale has also criticised the MCA 2005 and DOLS when she says that there are a total of 205 paragraphs in the schedules to the MCA 2005, and another 45 regulations that all go on to define a single simple power (Jackson, 2016, p. 341).

Conclusion

Clearly, DOLS has been subject to much criticism and some of the criticism seems to be justified in light of deprivation of liberty and the practical difficulties in making applications for DOLS. The Law Commission, judiciary and members of the academia have critiques DOLS. Therefore, the system needs to be reviewed.

In Sonia’s case, the process has not been followed properly. There is a lack of reporting of Sonia’ history of self-harming. The Local Authority has failed to take authorization from the Court of Protection, despite Sonia being in her mother’s custody. Therefore, the decision is incorrect and Sonia’s mother can apply to the Court of Protection against the decision of the Local Authority.

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