Vulnerable patients at great risk under new laws

300,000 people with conditions such as Alzheimer’s, autism or learning disabilities will see their rights - specifically their right to liberty - stripped back every year by imminent changes to the Mental Capacity Act, the Law Society of England and Wales said as the government prepared to push legislation through its final parliamentary stages (26 February).

Fewer cared for people will qualify for the protection of important safeguards under the new scheme, their access to advocacy and independent professional support will be more limited. People who are deprived of their liberty may face detention without any review for periods of up to three years.

“The government must reassess this misguided legislation and recommit to empowering and protecting people who may not be in a strong position to protect and advocate for themselves,” Law Society president Christina Blacklaws said.

“These people may be subject to highly restrictive measures in care homes, supportive living arrangements and hospitals.

“We are particularly disturbed that 16- and 17-year olds would have gravely weakened safeguards and their parents’ rights would be undermined.”

Care home managers would be given too much influence over decisions about whether someone should be detained in a residential or nursing home under the government’s plans.

“Care homes that profit from decisions to detain people in their care are given too great a role under the new regime, creating a dangerous conflict of interest.

“The new legislation would task care home managers with the job of establishing whether or not a person deprived of their liberty in their care is happy with the arrangement or wishes to leave. This is a deeply flawed approach.

“Care homes are unlikely to have the expertise necessary to oversee deprivation of liberty decisions, and many - stripped to the bare bones by austerity - will not have the financial resources to cover the subsequent cost.

“The Law Society - and the vast majority of stakeholders - agree a change in the law is needed. The current system is not working. There are huge delays and a backlog of over 125,000 people who are currently unlawfully deprived of their liberty.

“But the Mental Capacity (Amendment) Bill needs urgent and extensive revision if cared for people are to have meaningful access to justice.”

Notes to editors

Mental Capacity (Amendments) Bill 2018 schedule

Read our parliamentary briefing on the Mental Capacity (Amendment) Bill 

Read our statement on the Bill (October 2018) 

  • When Deprivation of Liberty Safeguards (DoLS) were introduced (2007) it was anticipated there would be c.20,000 people deprived of their liberty under the Mental Capacity Act per annum. In the first year 7,000 were deprived of their liberty.
  • This number increased steadily and then exponentially following a ruling in 2014 (P v Cheshire West and Chester Council and P&Q v Surrey County Council) that expanded the definition of deprivation of liberty.
  • Local authorities deprived 220,000 of liberty in the most recent year, but there is a backlog of cases and gaps in coverage - domestic and assisted living contexts - and so government estimates the real number of cases to be 300,000 each year.

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