The Mental Capacity (Ammendment) Bill

The Mental Capacity (Ammendment) Bill

This Bill Explained

In 2009, the Deprivation of Liberty Safeguards (DoLs) were brought into place, amending the 2005 Mental Capacity Act. These operate as a method to ensure that people who cannot consent to medical support are properly protected, putting in place systems to ensure that their freedom is protected if they are placed within medical care, such as in a hospital or care home.

Article 5 of the Human Rights Act states that ‘everyone has the right to liberty and security of person’. However, the Mental Capacity Act of 2005 allows for the restriction of an individual’s liberty, through methods such lock in, calming mediation, or physically preventing them from harming themselves. The Deprivation of Liberty Safeguards provides a frame of reference for when these actions can be taken.

The current system operated through a supervisory body, and requests for depriving liberty must be made 28 days in advance of the act. They then must confirm within three weeks whether it is acceptable for them to be deprived of their liberty. Alongside this – the current law lays out a series of requirements, all of which must be met. These include:

  • The person is 18 or over (different safeguards apply for children).
  • The person is suffering from a mental disorder.
  • The person lacks capacity to decide for themselves about the restrictions which are proposed so they can receive the necessary care and treatment.
  • The restrictions would deprive the person of their liberty.
  • The proposed restrictions would be in the person’s best interests.
  • Whether the person should instead be considered for detention under the Mental Health Act.
  • There is no valid advance decision to refuse treatment or support that would be overridden by any DoLS process.

There have been many criticisms of these Safeguards, having been described as too complex and often too bureaucratic. The first of these is that it overlaps with the Mental Health Act 1983, which allows for the sectioning of individuals, however there is often overlap with the DoLs system. Due to the complex nature of the DoLs system, as well as the pressure that it is under following the Supreme Court ruling in 2014 that these safeguards applied to a larger group of people than previously assumed, the system has been put under a great amount of burden. Furthermore, the lack of clarity in the meaning of ‘deprivation of liberty’, as well as how and when this should be enacted, have resulted in a lack of clarity regarding these safeguarding methods. In March 2017, the Law Commission released a report on this very topic, and recommended that the DoLs process was overhauled, with more comprehensive, but clearer safeguards for a person.

Proposed Amendments

These have resulted in the proposed amendments to the Bill, in the following areas:

  • Increased advocacy rights and periodic checks on care for those in need
  • A higher emphasis on the individual’s human rights, and whether deprivation is necessary
  • Extending protections to supported living and domestic settings – removing the needs for the Court of Protection
  • Including all aged 16 or above (rather than 18 or above) within the safeguarding system
  • Allowing authorisations to cover more than one setting and include renewals, to prevent unnecessary repeat assessments
  • Allowing responsibility to be passed to NHS if authorisation within an NHS setting
  • Update the best interest’s assessment to a simplified system with a necessity on arrangements being ready before authorisation.

This Bill was introduced into the House of Lords on the 3rd of July this year and completed its stages on the 11th of December, although there were some concerns over the definition of deprivation of liberty, the role of care home managers in carrying out assessments, as well as the how the recent recommendation for Independent Review into the Mental Health Act would affect this bill in the future.

This week, on the 18th of December 2018, the Bill was introduced into the second reading within the House of Commons. Despite support from the Health Secretary over the protection of Human Rights, some opposition has been mounted over the speed of the movement of this Bill, suggesting that further scrutiny is needed to ensure that this is the effective decision for the Government. The next stage of this Bill is the Committee Stage, where the entire Bill is deeply scrutinised and there is an assessment of any changes that are necessary for the Bill. It has not yet been announced when this will be happening.