Legal Update – Mental Capacity (Amendment) Bill – passage through parliament
In July 2018 the government published the much anticipated Mental Capacity (Amendment) Bill which proposes the introduction of a new scheme (colloquially referred to as ‘Liberty Protection Safeguards’) to replace the widely criticised Deprivation of Liberty Safeguards. When the Bill was first published, leading figures in the health and social care sectors expressed dismay at the failure of the Bill to include some of the key recommendations arising from the Law Commission report.
The Bill is currently being scrutinised by the House of Lords and following three days of debate at Committee stage a number of important amendments have been made which address many of the concerns. The Bill has now moved on to Report stage in the House of Lords where further tabled amendments will be considered.
To date the key amendments agreed in the Lords are as follows:-
- The new scheme to be extended to cover 16 and 17 year olds in line with Law commission recommendations.
- The unpopular term ‘unsound mind’ to be replaced with ‘mental disorder.’ This will bring the terminology in line with that used in the Mental Health Act 1983.
- An explicit requirement that the person at risk being of deprived of their liberty (the ‘cared for person’) be consulted about their care arrangements in order to determine their wishes and feelings. This was a glaring omission in the original wording of the Bill.
- An explicit requirement that the wishes and feelings of the ‘cared for person’ also be considered as part of the assessment to determine whether arrangements are ‘necessary and proportionate.’
- The ‘necessary and proportionate’ assessment to require consideration of whether the care arrangements are necessary to prevent harm to the cared for person and proportionate to the risk of harm to that person.
- The responsible local authority to decide whether the role of arranging the assessments and providing a statement should be delegated to the care home manager or retained by the local authority in each case. This amendment is in response to concerns expressed by Peers and social care professionals about whether care home managers possess the necessary skills and knowledge to carry out this role.
- Requiring that assessments cannot be carried out by someone with a financial interest in the care home – this is intended to ensure that care home managers are not conflicted.
- 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
After the amended Bill has been approved by the Lords it will pass to the Commons for further scrutiny and debate. The government has agreed to bring forward a statutory definition of deprivation of liberty when the Bill is debated in the House of Commons – this is a welcome development aimed at providing much needed clarity to practitioners.
The Bill will undergo further amendment in the Commons and will only receive Royal Assent when both Houses have reached agreement on the final wording and this can take considerable time. So the light at the end of the tunnel is not in sight yet!
We will issue further updates as the Bill progresses through Parliament.
27th November 2018
KATHRYN RIDDELL
Partner in Sintons Healthcare Team
If you have any questions or require any advice on the issues discussed in this article please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk
