The Law Society Publishes Parliamentary Brief about Concern Over the Mental Capacity (Amendment) Bill.

Mar 6, 2019 Liz

Introduction

The Mental Capacity (Amendment) Bill is being debated in Parliament. The Law Society recently published their thoughts to be considered by MPs. The full report from the Law Society can be found here.

The Law Society

The Law Society is the representative body for 180,000 solicitors in England and wales. It also negotiates on behalf of the profession, lobbies regulators, Government and others and has a public interest role in working for reform of the law.

A Bills Journey through Parliament

For simplicity’s sake, the journey that a ‘Bill’ takes through Parliament is summarised in the diagram below:

If you are interested in finding out more about this process, the following link takes you to the Parliament website, where the process is given in more detail: Passage of a Bill.

The Mental Capacity Act 2005

The MCA 2005 is used when someone over the age of 16 lacks the mental capacity (‘capacity’) to make decisions for themselves regarding their health, welfare, housing and finance. One of our previous blogs explaining capacity in more detail can be found here: What is Capacity.

The Mental Capacity (Amendment) Bill is a Bill which seeks to amend the MCA 2005, and bring it up to date. The Bill and related documents can be found on the Parliament website.

The MCA 2005 is now over a decade old in in need of amending, but the Law Society is concerned that some of the proposed amendments will leave vulnerable people at risk by removing existing and vital safeguards for cared-for people.

The Concern of the Law Society

The Law Society is not seeking to stop the Bill progressing through Parliament, simply to make Parliament aware that some of the proposed changes will make the treatment and detention of vulnerable individuals under the Act unlawful. They contend that the flaws that currently exist in the MCA 2005 are at risk of being duplicated and that the amendments should seek to address these issues rather than risk replacing one deficient system with another.

The Law Society has emphasised that:

1.Sufficient safeguards must be on the face of the Bill – for example, key legal obligations and powers and definitions should be addressed by the Bill rather than secondary legislation
2.There is a risk of litigation to address unlawfulness in the Bill – in its current form, the Bill could be exposed to legal challenge for failure to protect cared-for people to the standard required in law.
3.Lessons should be learnt from the existing system – much can be learnt from the existing system of Deprivation of Liberty Safeguards (DoLS).

The main areas of concern from the Law Society regarding the Mental Capacity (Amendment) Bill are:

The Bill should be putting the person’s best interests at the heart of the decision
The Bill should strengthen cared-for people’s rights to object and challenge decisions and arrangements
The Bill needs to clarify the role of the care home manager
The Bill should put a limit on the length of time a cared-for person can be authorised to be deprived of their liberty, without review, from three-years to one-year
The Bill should provide safeguards to those who are deprived of their liberty through an emergency authorisation – currently, this can be for an unlimited period and the Law Society thinks this is unlawful. They propose a time limit of 14-days.
The Bill should provide protection for the right of refusal, where someone with Lasting Power of Attorney or who is a Court appointed deputy makes decisions on someone’s behalf
The Bill should protect the rights of cared-for people who are deprived of their liberty in private or independent hospitals
The Bill should provide for an interface between mental capacity and mental health laws
The Bill should strengthen the safeguards in place for 16- and 17-year olds

Questions for the Second Reading

The Law Society has composed several suggested questions to be submitted at the second reading of the Bill in the Commons:

Will the Minister provide assurances that the decision to deprive someone of their liberty will include consideration as to whether deprivation of liberty is in the person’s best interests and will also consider alternative less restrictive options?
Does the Minister agree with the Law Society’s recommendation that access to an Independent Mental Capacity Advocate should be available to all and not conditional on a best interests test?
What will the Government do to provide further clarity on the role of care home managers and ensure there are no conflicts of interests?
Will the Government agree that someone’s liberty should only be authorised for a maximum of one year without review?
Will the Government agree that all cared-for people in private hospitals should have the authorisation of their deprivation of liberty overseen by an Approved Mental Capacity Professional (‘AMCP’) and that the responsible body should be a statutory authority and not the private hospital management?
Will the Government consider the interaction between this Bill and the Mental Health Act as set out in its recently published review?
Will the Government consider seeking further consultation on the application of the LPS scheme to 16- and 17-year olds?