In 2014, the House of Lords issued a report on the Mental Capacity Act 2005 (MCA) which highlighted a range of concerns and problems. The following day, the Supreme Court ruled in the case of Cheshire West and significantly expanded the concept of a deprivation of liberty which has since seen a rise in some local authorities of over 1,000% in requests for best interests assessments, which determine whether or not Deprivation of Liberty Safeguards (DoLS) are implemented in hospitals or other residential care settings.
Some of this doesn’t sound like it obviously links to policing but over the last few years, I’ve found an obvious rise in the number of queries I receive about police officers becoming involved in DoLS-related incidents. Things like, whether or not they have a ‘power’ to return an elderly person to a care home when they are reluctant to return but subject to a standard or urgent authorisation under DoLS. If you don’t have a Scoobie-Do what that last sentence actually means, I’ve written elsewhere about policing and DoLS.
Police forces have struggled with all of this and with other incidents involving the MCA – and they continue to do so. We saw in 2010 the case of Sessay in which police officers sought to rely upon the MCA to justify their intervention in private premises where dealing with a mental health incident. We also saw the ZH case, which related to an incident at a swimming pool in Acton where officers again failed to convince the courts that the MCA defended them from liabilities arising from actions purported to be undertaken under the MCA. I get a large volume of enquiries about the MCA and whether or not it applies in this, that or the other circumstances and it’s not unfair to observe that police, paramedics and others can really get themselves into grievous intellectual anguish about this stuff.
It’s a bit of a mess! – a lawyer I once met described the MCA to me as “Probably the worst piece of parliamentary drafting I’ve known in over 40yrs of being a solicitor.”
So now, it’s time to have your say, if you have a view —
THE LAW COMMISSION
The Law Commission is therefore working on recommendations to the Government about potential legal reform of this area. They have published a document (with a summary version!) on mental capacity and deprivation of liberty safeguards and actively seek feedback from those with an interest or relevant experience in this area. I will put this around the police service later today and encourage the development of one response from the College of Policing and National Police Chief’s Council, but there is nothing to prevent individuals expressing their view whether you are a police officer or not.
You will not see development in this area very quickly – the Law Commission aims to produce a final report on this with a draft Bill by late 2016 and Government will then need to consider it and make decisions regarding it. I confidently expect to be within my final decade of police service by the time anything happens!
Deadline: 2nd November 2015.
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