The Witchfinder summarises the evidence from the recent House of Lords Committee on the Mental Capacity Act 2005 and points the finger at the Labour politicians responsible for this travesty.
The Witchfinder, under another name, was one of many individuals, professionals and organisations that gave evidence to the ongoing investigation. The evidence has now been published and your humble inquisitor has decided to summarise.
Anyone wishing to read it for themselves can find volumes 1 and 2 on the parliament website –
What is striking is just how loud the chorus of complaints are. Chris Booker of the Telegraph, for example, would be delighted to discover just how many social workers are in total agreement with him about the Act’s inadequacies.
The problem with dry text is the inability to fully convey the human suffering represented by the endless storm of criticism. I quote (for example) Kate Beynon, a social worker in Northamptonshire, “I was involved in a recent CoP case and am very worried that one of the parties was not able to access legal aid, she was in debt and could not afford repayments and yet we were removing her adult son from her care.”
Beynon is quite right – a lot of the Witchfinder’s charity work exists solely because there is negligible legal aid available to families when social services take away adult relatives.
She goes on to mirror the Witchfinder’s suggestion that there be local Mental Capacity tribunals instead of the current Court of Protection, “Why can we not have local Tribunals similar to Mental Health Tribunals?”
Then there is Brighton and Hove City Council – “The [Deprivation of Liberty] Safeguards are experienced as bureaucratic and confusing.” […] “A lack of an automatic or straightforward appeals process leaves the person insufficiently protected” […] “Should there be more formal ‘checks/balances’ outside of the best interest process, but which sit outside the specific jurisdiction of CoP such as a local tribunal”
Then there is the British Association of Social Workers (BASW), “Some practitioners think that consideration should be given to the use of a First Tier Tribunal system for reviewing some MCA cases.” A quote from BASW I think Mr Booker will love – “Our members see the Court of Protection as often costly, bureaucratic, and lacking transparency/openness in how it conducts its business.”
Or Camden Safeguarding Adults Partnership Board, “There is also a concern that the process for DoLS does not sufficiently address the need for a speedy review of a person’s detention by a court. The Mental Health Act has a much simpler and speedier process of independent review of detention via the mental health tribunal.”
These are the tragic stories of individuals. A mother and son separated without appeal, she bankrupted by trying to challenge the state decision. Individuals locked up, sobbing, screaming and with no access to any lawful review.
Of course quite often the care home’s response is to claim this not actually a deprivation of liberty, as noted by (for example) the London Borough of Hammersmith, “The lack of a definition of ‘deprivation of liberty’ and the inconsistency in court case rulings means that there is wide variation in who different BIAs judge to be deprived of their liberty (and who managing authorities refer).”
The London Borough of Newham Adults Social Care said, “It would be helpful to include a clear definition of deprivation of liberty in the legislation and the Code of Practice.”
The Witchfinder personally enjoys Luton Borough Council’s pithy statement, “The safeguards are not adequate.”
North Staffordshire Combined Healthcare Trust, “[…] there remains a lack of clarity about what a deprivation of liberty is.”
South Essex Partnership University NHS Foundation, “Professionals are not always aware of when lawful restraint might be moving into a deprivation of liberty that requires further authorisation under DoLS.”
St Helen’s Council, “There continues to be a lack of understanding amongst MAs about when to and not to use the safeguards. There is no statutory definition about what constitutes a deprivation of liberty, which if in existence would assist MAs’”
The College of Social Work, “Another important finding highlighted the absence of a standard definition of DOLs that has hampered the ability of staff to properly interpret the guidance. Respondents to our call for evidence have stated that different professionals have different views about what constitutes restraint or deprivation, and this distinction appears to be causing confusion for providers.”
“[…]As noted elsewhere, challenges are not always timely and can involve lengthy hearings in the Court of Protection. Respondents called for a quicker system, similar to what is available under the Mental Health Act, to be incorporated into the process.”
Worcestershire County Council and Worcestershire Health and Care Trust integrated Learning Disability Teams, “There is a lack of understanding of the safeguards and how to implement them on the part of Managing Authorities. This is particularly evident with regard to understanding what a reasonable restriction under the Act is and what might constitute a deprivation of liberty.”
Again and again the social workers’ comments are counterpointed by the comments of real families who complain of unaccountable state decisions that reave husband from wife and parent from child.
Most poignant of all is the evidence of Mr and Mrs E. They are the parents of HL, the man in the Bournewood case that forced the reform of the law. They have been supporting many families whose lives have been blighted by the Deprivation of Liberty Safeguards, such as a devoted son whose mother was detained for three years without a standard authorisation being in place, whilst he was prevented from seeing her.
This shambles is human tragedy on a national scale. So who is responsible? Labour. They were the government in power when the Bournewood challenge was brought and the European Court said (quite rightly) that people should not be detained with no right of appeal.
Labour were the government that introduced both the Mental Capacity Act 2005 and the Deprivation of Liberty Safeguards, sullenly refusing to put in place any real processes for making the ‘Safeguards’ work.
The Secretaries of State for Health during the passage of the Mental Capacity Act 2005 and the Mental Health Act 2007 (introduced the DoLS) were John Reid and Patricia Hewitt. They and the subsequent office holders, in particular Andrew Burnham, must take responsibility for what happened on their watch and for his department’s failure to act adequately on the chorus of complaints that arose from this dreadful legislation.
Obviously, no government Minister is an island and they rely on civil servants, lawyers and a platoon of advisors. However, the problems with DoLS are eminently forseeable and they were foreseen. It is a quintessentially socialist piece of legislation, bureaucratic, expensive and offering vastly less safeguards against state interference than Margaret Thatcher’s Mental Health Act 1983 (which operates at a fraction of the price).
The blame for this shambolic, paternalistic legislation stops with Labour and the ministers in power at the time. It is an affront to those who have suffered under the Mental Capacity Act for Andy Burnham MP to continue to hold office.
Andy Burnham’s office were contacted and given an opportunity to comment on a draft version of this article prior to publication. The Witchfinder received two read receipts from his staffer Philip Ball but no reply. Unsurprisingly, Mr Burnham has nothing to say. That in itself speaks of his sheer arrogance. Nothing to say to the Witchfinder. Nothing to say to the public and most despicably of call nothing to say to the families of the victims.
The Witchfinder has started a petition for Mr Burnham’s sacking for those families affected to express their views.
Andy Burnham must be sacked.