Mental Capacity (Amendment) Bill Part 2

In the second part of this series we explore the current status of the Mental Capacity (Amendment) Act Bill. We look at how the proposed changes would reform the legal arrangements surrounding those who lack capacity, ensuring that such arrangements do not amount to a “Deprivation of Liberty”.

What is the current status of the Bill?

The first and second readings of the Bill took place in the House of Lords in July 2018. During the readings the Bill was criticised by the House of Lords, the Lords were concerned that many of the recommendations from the Law Commissions’ Report in 2017 were missing from the Bill.

The Bill then went through the Committee stage of the House of Lords and on 22 October 2018 the 3rd sitting took place. Many amendments were debated by the Lords but, following the address by Lord O’Shaughnessy, Parliamentary Under-Secretary of State, they were withdrawn.

The next stage of the Bill will take place on 21 November 2018 when the Bill will go through the Report stage in the House of Lords.

Whilst no changes have been made to the Bill it is accepted that there will be amendments proposed at the Report stage by both the House of Lords and the Government.

What issues did the Lords raise?

Some of the questions raised by the Lords include:

• Why the new safeguards only applied to those who are 18 or over.
• There being no statutory definition of the term “deprivation of liberty” within the proposed legislation.
• The burden on Care Home managers and concerns as to whether there would be a conflict of interest in them carrying out the assessments and pre-authorisation reviews.
• The Code of Practice and how it will be implemented.
• The assessment procedures.
• The reliance on previous medical and capacity assessments whilst reducing duplication.
• Training and how this could be facilitated.
• The role of the Approved Mental Capacity Practitioner.
• The need for wishes and feelings to be obtained and considered as part of the liberty protection safeguards process.
• Consultation with others, particularly family members and carers.
• Independence in the system.
• The renewals procedure, particularly where there has been a change in circumstances and the existing authorisation ceases to have effect.
• The use of the term “unsound mind” which is widely considered to be stigmatising and inappropriate.

Lord O’Shaughnessy set out a number of responses to the amendments made by the peers in a lengthy speech. He has indicated an intention to make a number of changes to the Bill. He announced that amendments to the Bill will be made including:

1. Extending the scheme to 16 and 17 year olds - This is currently a grey area as in November 2017, LJ Munby giving the leading judgment in the Court of Appeal held that where a child over 16 lacks capacity to make the relevant decisions for themselves the consent of someone with parental responsibility is sufficient to mean there is no “Deprivation of Liberty” that needs authorisation, even if the other elements are satisfied. The Supreme Court decision on this issue which was heard in October and is awaiting judgment.
2. Replacing the term “unsound mind” with a new definition - There are concerns that the new language may create a gap but Lord O’Shaughnessy was confident that work could be done to prevent any ambiguity when drafting the new language.
3. Introducing a requirement to consult with the relevant person as well as others nominated by the person and consider their wishes and feelings obtained in that process.
4. Defining the term “Deprivation of Liberty”.
5. Implementing a procedure for safeguards to be justified where there is a risk of harm to others.
6. Ensuring independence by confirming that care home managers will not carry out three core assessments, instead they must be commissioned or previous assessments relied upon.
7. Preventing any conflict of interest in the pre-authorisation reviews which must only be carried out by the responsible body.
8. Expanding the code of practice to ensure that certain cases are referred to an Approved Mental Capacity Professional.

Lord O’Shaughnessy stated:

“I hope that in responding to these amendments I will be able to show further that we are taking a positive and constructive view on improving the Bill, making sure not that it removes rights but quite the opposite—that it provides access to liberty-protection safeguards for people who do not currently enjoy them.”

The joint (Commons and Lords) Committee on Human Rights published on 26 October its report on the Bill addressing the need for a definition of the term “Deprivation of Liberty” and their concerns regarding the potential conflicts of interest for care home managers. This signifies a real commitment to change and is an important step in this process.

There are still many outstanding issues with the Bill in its current form. Some critics have labelled it “unworkable” and lacking in clarity. Some have even suggested that the Government should go back to the drawing board and start again using the Law Commissions Report as a basis.

The next stage of the Bill will be crucial to its progression and ensuring that sufficient safeguards are in place for the vulnerable adults to whom this legislation is designed to protect.

What about those who are deprived of their liberty now?

The existing “Deprivation of Liberty” safeguards under Schedule A1 of the Mental Capacity Act 2005 will remain in force.

How can we help?

If you have any concerns queries regarding the care arrangements of a person you may know then contact our specialist team for confidential and friend expert help and advice.

At Boyes Turner, our community care and court of protection teams are experienced in supporting individuals who lack capacity and their families through the legal, administrative and practical challenges that arise in relation to their care and residential arrangements.

Our legal experts provide our clients with a range of support, depending on the individual’s needs, from background legal advice and support in achieving appropriate levels of social care to managing local authority and ombudsman complaints or representing the individual and their family in judicial review proceedings.

By ensuring that you understand the system and know your rights, we can help you obtain the right social care and support for your family member.

Contact us at cop@boyesturner.com or telephone the team on 0118 952 7219.