Mental Capacity (Amendment) Bill
"A Bill to amend the Mental Capacity Act 2005 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."
39 Essex Chambers have kindly agreed for the following summary to be reproduced below. The remainder of the newsletter can be read here: 39 Essex Chambers, 'Mental Capacity Report' (Issue 89, October 2018).
Mental Capacity (Amendment) Bill update
The Bill had its second day of Committee stage in the Lords on 15 October. Although no amendments were made, the Government has indicated an intention to make a number of changes. The Government announced that it will be bringing forward amendments to:
- extend the scheme to 16 and 17 year olds (which will no doubt be of interest to the Supreme Court as it considers its judgment in the Re D case heard at the start of October);
- replace the term "unsound mind;”
- confirm that consultation must take place with the person, and wishes and feelings must be considered;
- introduce a statutory definition of deprivation of liberty.
The Government confirmed that the LPS would cover situations where deprivation of liberty is justified on the basis of risk of harm to others, exclude care home managers from undertaking pre-authorisation reviews, and use the code to ensure that cases involving acquired brain injury, mental health treatment in private hospitals and harm to others are referred to an AMCP.Further details can be found here.
- Alex Ruck Keene, 'Mental Capacity (Amendment) Bill published - headlines' (Mental Capacity Law and Policy, 4/7/18) — This article notes the following information about the Mental Capacity (Amendment) Bill: "(1) The Bill is focused solely upon a (version of) the Liberty Protection Safeguards, so the Law Commission’s proposed amendments to ss.4/5 have gone, as have regulation-making powers in relation to supported decision-making; (2) There is no statutory definition of deprivation of liberty (or provision for advance consent); (3) There are provisions for emergency deprivation of liberty/deprivations pending authorisation under the LPS; (4) The scheme of the LPS is broadly replicated, albeit from age 18 upwards, and with a significant change in relation to care homes, where considerably more responsibility is going to be placed on the care home managers in terms of arranging assessments/carrying out consultation. The reference to necessity/proportionality is no longer tied specifically to risk of harm/risk to self, but simply, now, necessity and proportionality; (5) The Law Commission’s proposed tort of unlawful deprivation of liberty (actionable against a private care provider) has gone; (6) The LPS ‘line’ of excluding the LPS from the mental health arrangements has been changed, and the current status quo (i.e. objection) as regards the dividing line between the MCA/MHA in DOLS is maintained."
- Ben Troke, 'The death of DoLS - the "Liberty Protection Safeguards" are before Parliament now' (Browne Jacobson, 4/7/18) — This article lists several initial observations about the detail of the Mental Capacity (Amendment) Bill, and in relation to its implementation notes: "On the timescales, we understand that it is anticipated that the Bill will be out of the Lords by the end of November 2018, and through the Commons early next year, with Royal Assent perhaps by April 2019. Allowing for implementation and training, we might expect it to come into force perhaps in late 2019, early 2020."
- Law Society, 'Parliamentary brief: Mental Capacity (Amendment) Bill 2018: HL committee stage' (3/9/18) — This briefing paper on the Mental Capacity (Amendment) Bill contains the following headings: (1) Introduction; (2) Executive summary; (3) Principles of a new safeguarding framework; (4) Putting the person at the centre of the Mental Capacity Act; (5) Underpinning principles in the MCA 2005 and UNCRPD; (6) Assessment processes; (7) Independent scrutiny and safeguards; (8) Review processes; (9) Removal of the power to place conditions on authorisations; (10) Challenging authorisations; (11) Application of the LPS to 16 and 17-year olds. The Law Society's website summarises it as follows: "The Law Society believes 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. This briefing sets out the Law Society's views and makes recommendations for changes to make the Bill fit for purpose."
- 39 Essex Chambers, 'Special Report: Mental Capacity (Amendment) Bill' (3/9/18) — This report on the Mental Capacity (Amendment) Bill, edited by Victoria Butler-Cole, Neil Allen and Alex Ruck Keene, contains articles by: Neil Allen (Barrister, 39 Essex Chambers); Victoria Butler-Cole (Barrister, 39 Essex Chambers); Lorraine Currie (MCA/DoLS lead); Stephen Ward (Trust MHA and MCA lead); Gary Haigh (Local Authority Practice Development Manager);Martin Sexton (Local Authority MCA/DOLS team manager).