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Mental Capacity (Amendment) Bill requires further changes

26 October 2018

The Government's Mental Capacity (Amendment) Bill requires further changes to protect the human rights of vulnerable people. To achieve this, it must clarify the definition of ‘Deprivation of Liberty' and avoid potential conflicts of interest for care home managers.

As many as 125,630 people are currently unlawfully deprived of their liberty

The current Deprivation of Liberty Safeguards scheme safeguards against the arbitrary deprivation of liberty of people who lack capacity to consent to their care or treatment, such as people living with dementia, autism and learning disabilities, providing legal authorisation for depriving a person of their liberty in a care home or hospital setting.

However, there is widespread consensus that the scheme is broken, as the Committee said in its report on the Right to Freedom and Safety.

In Cheshire West the Supreme Court decided that the “acid test” for deprivation of liberty is whether a person is under continuous supervision and control and not free to leave, regardless of whether they are content or compliant.

Following this judgment, the breadth of the test means that as many as 125,630 people are currently unlawfully deprived of their liberty, in breach of Article 5 of the European Convention on Human Rights. Extending the existing scheme to all those caught by this definition could cost £2 billion a year.

In an attempt to resolve the crisis, the Government has brought forward this Bill, which follows the Law Commission's proposals for a new scheme of Liberty Protection Safeguards but differs from the proposals in a number of respects.

Several problems with the Bill

The Committee has identified several problems with the Bill, which would be solved by the amendments proposed in the report. These include:

  • Many of those caught by the Cheshire West definition are not perceived by their family or professional carers as being ‘deprived of their liberty'. The Committee repeats its call to Parliament to consider including in the legislation a definition of deprivation of liberty in the context of mental capacity law, to clarify the application of the Supreme Court's ‘acid test' whilst being mindful of the fact that any definition must comply with Article 5.
  • Most significantly for those living in care homes, responsibility for undertaking or arranging the assessments required before a deprivation of liberty can be authorised would in future fall to care home managers. The Government has asserted that its proposals provide the assessment process with the degree of independence required by Article 5 case law. The Committee shares concerns expressed by disabled people, professional bodies, service providers and lawyers that in practice, care home managers will face conflicts of interest that will seriously hinder their ability to make objective assessments. The report proposes amendments to the Bill to enhance these safeguards.

We must give cared-for people, their families and professionals greater certainty

Committee Chair Harriet Harman MP said:

“The human rights of vulnerable people who lack mental capacity must be protected with a more robust system of safeguards.

We must give cared-for people, their families and professionals greater certainty by providing a clear definition: the Bill must be changed if it is to do that.”

Further information

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