Public Law

Article: Mental Capacity (Amendment Bill)12.11.18

The Government has brought forward the Amendment Bill following the Law Commission’s proposals for a new scheme of Liberty Protection Safeguards to replace the current Deprivation of Liberty Safeguards. The Bill amends the Mental Capacity Act (MCA) 2005 by replacing Schedule A1 to the MCA (“DoLS”) with Schedule AA1 that provides for a new scheme for authorisation of deprivation of liberty.

The draft bill differs significantly from the Law Commission proposals in many respects and has been met by considerable challenge from the Law Society, Bar Council, Parliamentary Joint Human Rights committee and numerous charities and interested parties.

The issue that has raised the most concerns to date relates to the proposal that the responsibility for undertaking or arranging the assessments required before a deprivation of liberty can be authorised would in future fall to care home managers – not the responsible body. The role of the responsible body would be restricted to pre-authorisation review, which will in general be a desktop exercise based on information provided by the care home, unless the responsible body has ‘reason to believe’ that the person is objecting (in which case they must arrange for an ‘Approved Mental Capacity Professional’, AMCP, to meet the person and undertake the review). Many groups have argued that in practice, care home managers will face conflicts of interest that will seriously hinder their ability to make objective assessments.

Further, under the proposals as they stand there is no obligation to consult with the person who is to be deprived of their liberty when making an authorisation and authorisation renewal would only be required every 3 years.

There have also been arguments made for the need for Parliament to define ‘deprivation of liberty’ in the context of mental capacity law in order 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 HRA.

It is anticipated that the Bill will progress from the Lords by the end of November 2018, then through the Commons in early 2019, with Royal Assent possible by April 2019. The bill may come into force in late 2019/early 2020.

The most recent comment on the bill is from the Joint Committee on Human Rights (JCHR).

This is usefully read together with a memo submitted to the JCHR by the Department of Health and Social Care in July that addresses issues in the new bill in relation to Articles 5 and 8 under the ECHR and Articles 12 and 14 UNCRPD.

The memo can be found here [PDF]