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SOCIAL CARE LAW

not detained under the Mental Health and thus indefensible in public law terms.
Act framework of process and advocacy However, an AMCP will owe an obligation How will the
rights, it is these people who will need the to ensure that their actions do not bring safeguards work?
safeguards and be entitled to them, about a state of affairs that is ‘not in
and it will be a particularly tough test of accordance with the law’, because an
the independence of the Approved AMCP will be a human rights public body l To be covered the person must be
Mental Capacity Professional (AMCP) in their own right, and not entitled to aged 16 or over, lack capacity
in determining whether arrangements in bring about an unjustified interference to consent to the proposed
such places are necessary and with human rights, which themselves arrangements and be assessed to
proportionate. turn on the underlying measure be of ‘unsound mind’ within the
being LAWFUL. meaning of the European
AMCPs, the report suggests, MUST Convention on Human Rights.
approve the arrangements if he or she The report is clear that the AMCP can say l The assessment can only be
determines that the conditions for the No, the conditions are not met, but just as carried out by someone who
authorisation of arrangements are met. with a Best Interests Assessor (BIA) who meets the requirements in the
The AMCP would be expected to consider says no, now, when they don’t think the regulations; for example, a certain
matters using their own professional package is lawful, there is no clarity as to type of psychologist or doctor
judgement rather than simply to consider what should then happen. And the fact but, for example, where someone
whether those conducting the that the report makes no final has autism, these could be used
assessments could reasonably reach the recommendation about whether to specify a specialist experienced
conclusions that they did. If I was going challenges should be to the Court of or qualified in autism.
to be an AMCP, and the impasse holding Protection or a new Tribunal,
‘escape’ up is refusal to increase a means that we will all be in the dark a l To be authorised,
person’s budget, the question whether good while longer. the arrangements must be
the arrangements are ‘necessary and verified by an independent
proportionate’ is what would be The next step will be for the reviewer or an AMCP as
worrying me. Department of Health to respond to the ‘necessary and proportionate’,
Law Commission’s recommendations, taking into account whether the
The clear intention in the Commission’s which should happen within 12 months. person could be harmed or
report is that AMCPs will not be entitled Then a draft Bill of some sort will be could harm others.
to tell a council or CCG what to buy, or scrutinised by both Houses of Parliament, l Because it can’t be authorised
make a decision that the conditions of the as part of the usual legislative process. until verified by the independent
Liberty Protection Safeguards are not met, reviewer or AMCP, alternatives
but simply advise that the package being Read Belinda’s latest blog on: would have had to be considered.
offered is irrationally or arbitrarily low, http://SchwehrOnCARE.co.uk/
l LPS may now offer those
incapacitated individuals
A DATE FOR YOUR DIARY entering ATUs on a voluntary
basis not detained under the
MHA, but who are assessed as
’s too challenging for other
care arrangements,
some protections but it will be
the task of the AMCP to
determine whether
arrangements are ‘necessary
and proportionate’, to have
considered alternatives and to
ensure the advocacy support.
l AMCPs will only be entitled to
advise a council or CCG if they
consider the package being
offered is irrationally or
Belinda Schwehr will be leading another of our popular arbitrarily low, and thus
legal seminars on Tuesday 27 February 2018 at indefensible in public law terms.
St Thomas Conference Centre, Ardwick, Manchester l Advocacy support should be
ongoing and where a temporary
Further details will be published in the next issue of emergency authorisation has
Community Living but in the meantime if there is a subject been given the safeguards of the
you would like Belinda to cover, please contact Rosemary Trustam process should be followed for a
longer term authorisation.
at rosecli@btinternet.com or call 01257 270430

www.cl-initiatives.co.uk Community Living Vol 31 No 1 | Autumn 2017 9