Parliamentary briefing: Mental Capacity (Amendment) Bill - House of Lords report stage

This briefing outlines our views ahead of the report stage of the Mental Capacity (Amendment) Bill in the House of Lords on 21 and 27 November 2018.

This Bill seeks to amend the Mental Capacity Act 2005 (MCA) in relation to procedures under which a person may be deprived of their liberty when they lack capacity to object to that deprivation.

Our position

As it stands, this Bill removes vital existing safeguards for cared-for people. The Bill should be amended to avoid the unlawful treatment of the vulnerable individuals who receive care and treatment under conditions of detention.

Key recommendations

We recommend the Bill is amended so that it:

  • requires a deprivation of liberty to be in the person's best interests and ensures that a decision to deprive a person of their liberty is only made after consideration of other options and the person's preferences
  • gives appropriate weight to the person's wishes and feelings
  • clarifies the role and responsibilities of the care home manager to ensure there is no conflict of interest and that sufficiently qualified individuals are undertaking key assessments
  • ensures that conditions to authorisation can be imposed that form part of a person's care plan to limit the extent of the deprivation
  • ensures the responsible body provides information to the cared-for person and those interested in their welfare before and after an authorisation is made
  • expands the circumstances in which a person has access to an approved mental capacity professional to secure greater scrutiny at key stages of a person's deprivation of liberty
  • clarifies the role of an independent mental capacity advocate (IMCA) and ensures access to advocacy and support
  • ensures that deprivation arrangements cannot be authorised when refused by certain persons with special status
  • limits the period of authorisation to 12 months in all cases
  • limits the length of emergency authorisations for vital acts and lifesaving treatment and ensure they can be speedily reviewed by the court in accordance with established legal principles

Maximise your Law Society membership with My LS