Private client

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

The briefing outlines our views ahead of the committee stage of the Mental Capacity (Amendment) Bill in the House of Lords on 5 September.

This Bill seeks to amend the Mental Capacity Act 2005 (MCA) in relation to procedures in accordance with which a person may be deprived of liberty where the person lacks capacity to consent, and for connected purposes.

Our position

We believe that the proposed statutory scheme in the Mental Capacity (Amendment) Bill would weaken important safeguards provided under the existing Deprivation of Liberty Safeguards scheme.

Any statutory scheme which permits the state to deprive someone of their liberty for the purpose of providing care and treatment must be robust and comprehensible.

As it stands, we do not believe that the proposed Bill has sufficient safeguards and is not fit for purpose in its current form. It requires serious re-consideration and extensive revision.

Key recommendations

For the Bill to be fit for purpose we recommend changes in the following areas:

  • 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

Maximise your Law Society membership with My LS