Mental Capacity Act (Amendment) Bill: House of Lords Committee Stage

This week saw the Mental Capacity Act (Amendment) Bill (the Bill that will introduce the Liberty Protection Safeguards) move to Committee Stage in the House of Lords and on 5th September around 5 hours of discussions were held. The discussions concerned just a few (of the many) amendments that the Lords would like to see addressed for the Bill to continue its passage through Parliament. The next Committee Stage session is scheduled for 15th October 2018 and can be viewed here.   Amongst the widespread concern were issues including:

• The role of care home managers – There was great concern that the proposals shifted the task of assessing whether a person is deprived of their liberty from what is currently the Best Interests Assessor (BIA), who is often an Independent Social Worker to care home managers. Concern was raised as to whether care home managers had the time or training to make such an assessment. Also whether the manager of a care home (the very care home that is being paid for the person to live there) is going to be able to adequately assess whether a deprivation of liberty is occurring without there being a conflict of interests.
• Language used within the Bill – The phrase ‘unsound mind’ is the phrase used within the European Convention on Human Rights (ECHR). Article 5 of the ECHR concerns deprivation of liberty and is the reason we have the Deprivation of Liberty Safeguards. Discussion was held as to whether it was an appropriate phrase to use in a Bill drafted in 2018 given that the ECHR was drafted in 1950. Other phrases such as mental disorder or mental illness (terms which are commonplace in practice) were suggested above phrases which are typically only used within legal contexts.

Lord O’Shaughnessy, Parliamentary Under Secretary of State for Health (Lords), responded to by saying the proposals were robust and built upon the responsibilities that care home managers already have.  By this I would assume that he is comparing the completion of the current Form 1 and Form 2 to the subsequent assessment process!

On 3rd September, the Law Society published a Parliamentary Briefing outlining why they considered the Bill to be inadequate in its current form.  They recognised that there are resource constraints but warned against placing resources ahead of the safeguards proposed by the Law Commission.  They also identified that the Liberty Protection Safeguards as currently proposed would weaken important safeguards currently provided under existing DoLS.

The Law Society recommended changes in the following areas for the Bill to be fit for purpose:

• “elevating the wishes and feelings of cared-for people so that they are at the centre of the decision-making process and their views given appropriate weight in all decisions
• ensuring that the Bill is underpinned by the guiding principles of the MCA 2005 and the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD)
• reconsidering of whether it is appropriate for care providers to be given responsibility for assessment processes and whether the suggested process can guarantee the necessary independence to be legitimate
• addressing how the vital initial decision is made to remove someone from their home into a care home or to discharge them from hospital into a care placement where they are deprived of their liberty
• strengthening review processes for authorisations to ensure that cared-for people and those concerned with their welfare have the effective opportunity and support to challenge overly-restrictive authorisations
• careful consideration of how the Liberty Protection Safeguards (LPS) will apply to 16 and 17-year olds now that the government is reviewing its initial decision to exclude this important group”

I agree with widespread concern that the current system is very cumbersome and for many, not the correct process.  However, I have also experienced the tremendous freedom that people have been afforded as a direct result of the DoLS process.  Freedoms that are unlikely to have existed without it.  In my opinion, these proposals are heavily focused on the financial constraints of Local Authorities and less on protecting the freedom of people.  Depriving a person of their liberty was described by the Law Society as one of the greatest interference with a person’s fundamental rights (second only to violating the right to life and the prohibition of torture).  The proposals make assumptions that just don’t exist in practice.  They assume that; care home managers have sufficient time to undertake a thorough assessment, care home managers have sufficient training to undertake an assessment similar to that which a Best Interests Assessor currently undertakes, Local Authorities (and NHS bodies) have sufficient time to scrutinise every assessment and then identify whether further assessment is required and that care home managers will place this process above running their care home as a business.