While the mainstream media are distracted by Brexit, the government is continuing to rush the Mental Capacity (Amendment) Bill through parliament. The Bill had its second reading in the Commons yesterday.

The good news is that there was a brief debate in which Barbara Keeley (the Shadow minister) gave a well informed speech setting out the Bill's serious flaws in detail and calling for the government to rethink or at least pause the legislative process to allow proper consultation and revision of the Bill.

The bad news is that the government pressed on regardless and the Labour amendment seeking a delay was defeated. The Bill has now progressed to the committee stage.

During the Bill's progress through the Lords, it has been amended in several key respects. The current state of the Bill is as follows:

Positive aspects

  • The new name - Liberty Protection Safeguards
  • NHS responsibility for authorising deprivations of liberty in NHS-funded care
  • Requires that the arrangements are necessary and proportionate to the risk to the person themselves
  • Now extends to 16 & 17 year olds
  • Now uses “mental disorder” rather than “unsound mind”
  • Now states explicitly that the adult must be consulted with and their wishes and feelings considered, although it is only a “have regard” duty (which falls a long way short of UNCRPD compliance)
  • Now enables Local Authorities to decide whether they or Care Home Managers arrange the assessments and statement, rather than it automatically being Care Home managers for care in Care Homes
  • Now says assessments can’t be carried out by someone with a financial conflict of interest
  • IMCA decision now made by the LA rather than the Care Home Manager but still on a 'best interests' basis, not a right
  • Possibly slightly extended requirements for AMCP to carry out pre-authorisation review e.g. Contact restrictions, covert medication, family objections

Serious concerns remain

  • Proposed Role of care home managers is still an “inherent conflict of interest” (Care England) and conflict of interest for commissioning bodies is not addressed at all
  • Although local authoritoes can now decide whether to allow care home managers to arrange the assessments and statement, that decision is likely to be affected in the real world by lack of resources because no funding has been made available and shifting the responsibility to care home managers also shifts the cost burden. Local authorities may not have much of a choice.
  • Conflict of interest largely left to regulations (which we have not yet seen!). The 'prohibition' on conflict of interest is also a negative rather than positive duty and there is no enforcement mechanism. Essentialy this makes it useless in practice because it means it would fall to the adult to challenge via Judicial Review.
  • Pre-authorisation review can still be just a paper exercise not requiring a visit to the setting or actually meeting the adult
  • IMCA duty has “appropriate person” get out clause – see Care Act advocacy for how well (or otherwise!) this works in practice
  • The promised statutory definition of “Deprivation of Liberty” has not yet made public. There has to be a considerable risk that the government will propose a definition that will move backwards in terms of disability rights from the Cheshire West position
  • The fundamental risk remains that, for many people, there will be no meaningful independent scrutiny of their human rights
  • The Bill still lacks crucial aspects of the original Commission proposals. In particular it lacks:
    • amendment to the MCA requiring that best interests decisions "must give particular weight to any wishes or feelings ascertained"
    • restricting the s.5 defence for professionals around important decisions
    • power to make regulations introducing supported decision making
    • civil cause of action for unlawful deprivation of liberty against private care providers
  • The Bill offers nothing on the highly problematic MHA/MCA interface and the government will not wait to coordinate it properly with the proposed reform of the Mental Health Act
  • Finally, the Bill still fails to reform MCA to protect Article 8 rights

Overall, despite some improvements as a result of amendments, the Bill remains fundamentally flawed and provides completely inadequate protection for human rights. To quote Barbara Keeley MP:

"Although the deprivation of liberty safeguards need reform, and I agree that they do, the Bill deals with none of the challenges that have been outlined and creates some new problems that cannot be solved simply with further amendments. I am afraid we feel that the Government cannot be relied on to make the necessary changes during the remaining legislative stages given the resistance that they showed to making important changes in the House of Lords. On the contrary, the transformative spirit of the Law Commission’s draft Bill has been squashed, and the measures that would place the best interests of the cared-for person at the heart of the new system have been reduced.

The Government should have enacted the Law Commission’s proposals in full through the 15-clause Bill that was drafted, but instead we have this five-clause Bill. Why did they not simply bring forward the Law Commission’s proposals? The inescapable conclusion that we have come to from reading the Bill is that the Government are more interested in cost saving than in the best interests of cared-for people."

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