Mental Capacity (Amendment) Bill 2017-19
39 Essex Chambers have kindly agreed for the following summary to be reproduced below. The remainder of the newsletter can be read here: Media:Essex newsletter 89.pdf.
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.
39 Essex Chambers have kindly agreed for the following summary to be reproduced below. The remainder of the newsletter can be read here: Media:Essex newsletter 90.pdf.
Mental Capacity (Amendment) Bill Report stage
Ahead of the Report stage of the Bill on 21 November, the Government has proposed a series of amendments. They are available here, although are somewhat impenetrable in their published form. Helpfully, Tim Spencer-Lane has summarised the effect of the key ones as follows:
- Extending the Liberty Protection Safeguards to 16 and 17 year olds;
- Replacing the term “unsound mind” with “mental disorder;”
- Explicitly stating that the cared-for person must be consulted with;
- Explicitly stating that the cared-for person’s wishes and feelings must be considered as part of the necessary & proportionate assessment;
- Requiring responsible bodies to decide if care home managers should arrange the assessments and statement or if the responsible body takes on these functions;
- Requiring that assessments cannot be carried out by someone with a financial conflict of interest;
- Confirmation that the responsible body arranges the pre-authorisation review;
- A duty to appoint an IMCA if a person doesn’t have an ‘appropriate person’ representing them, unless it is in the person’s best interests not to have an IMCA;
- Removing the requirement that a care home manager must notify the responsible body whether or not an IMCA should be appointed;
- Requiring that medical and capacity assessments must be completed by those with appropriate experience and knowledge.
One obvious omission from the list is the statutory definition of deprivation of liberty that Lord O’Shaughnessy indicated on the second day of Committee stage the Government would attempt.Further briefing documents have been published by, amongst others, the Law Society; updates on the Bill’s progress can also be found on Alex’s website.
- 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 2017-19: "(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 2017-19, 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 2017-19 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 2017-19, 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).
- Luke Haynes and Mithran Samuel, 'Government issues deprivation of liberty definition in bid to provide clarity to practitioners' (Community Care, 11/1/19) — Subheading: "Ministers’ amendment to DoLS replacement bill sets out when a person would not be deprived of liberty, but sparks concerns over compatibility with human rights law".
- LPS equality analysis. DHSC, 'Equality Analysis: Liberty Protection Safeguards – Mental Capacity (Amendment) Bill' (17/12/18) — Details from Gov.uk website: "This document looks at the positive, neutral and negative effects that this legislation could have on people with protected characteristics and other groups, such as carers. This is in line with the Secretary of State’s Public Sector Equality Duty, and duties under the National Health Service Act 2006. The Mental Capacity (Amendment) Bill sets out the measures the government will take to replace the Deprivation of Liberty Safeguards (DoLS) scheme in the Mental Capacity Act 2005. This is a process that authorises deprivations of liberty for the care and treatment of those who lack capacity. The new system is called liberty protection safeguards. As changes are made to the bill, the government will consider the equality issues and this document will be updated when appropriate."
- Parliamentary briefing on Mental Capacity (Amendment) Bill. Law Society, 'Parliamentary briefing: Mental Capacity (Amendment) Bill: House of Commons second reading' (18/12/18) — Extract from Law Society website: "The Law Society is concerned by provisions in the Mental Capacity (Amendment) Bill. While attempting to simplify the current arrangements under the Deprivation of Liberty Safeguards (DoLS), the 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. Many changes have been made but there is still some way to go. There is a real risk that many of the flaws in the existing system will be duplicated and that the new system will replace one deficient system with another than removes existing safeguards for people. This briefing sets out our key positions on the Bill."