The Mental Capacity (Amendment) Bill

The Mental Capacity (Amendment) Bill has passed through all its stages in the House of Lords and is currently being considered by a Public Bill Committee until 24th January. We therefore do not know what amendments will have been made to the legislation until it has completed this stage and returns to the floor of the House of Commons. Currently no date is set for that report and third reading stage.

This proposed legislation seeks to amend the Mental Capacity Act 2005 which outlined the procedures under which a person may be deprived of their liberty when they lack the capacity to consent.

The intention of these reforms is to ensure that vulnerable individuals have access to legal safeguards, reforming and improving the system established in 2005.

These reforms have been subject to scrutiny to ensure they sufficiently improve the current system, with the Government conducting over three years of consultation and engagement with service users, local governments and providers. If you are a service user or provider I hope you had the opportunity to contribute to the consultation or to the Bill Committee members who have had many written submissions placed before them.

As the proposed legislation stands, bodies such as local authorities and hospitals will be tasked with organising arrangements or conducting reviews in relation to the deprivation of the liberty of an individual. However, care home managers, family members and healthcare staff will have the ability to raise objections with the concerned body.

For those individuals without a network of friends or family to support them who are unable to make decisions about their healthcare, this Bill will ensure their protection.

Under the new system, Liberty Protection Safeguards, specific arrangements for an individual’s deprivation of liberty will be arranged, as opposed to giving generalised instructions as occurred under the old system, the Deprivation of Liberty Safeguards.

This Bill will also protect caregivers from legal challenge, whilst simplifying and removing the bureaucracy of the 2005 Act.

Importantly, Liberty Protection Safeguards will seek to involve families to a greater degree, ensuring that all relevant information has been heard before authorising the deprivation of liberty of an individual.

The consultation process is vital in the passage of this legislation. The Rights to Information Amendment, which was not included in the original draft of the Bill, was added in the House of Lords as part of the authorisation process. The inclusion of this clause will ensure that the cared-for individual is fully informed of their rights, for example in their right to challenge the authorisation of care arrangements in Court.

This important piece of legislation is required to ensure that vulnerable individuals are protected. Thank you again for your input on this matter and I will bear in mind your representations if and when we are asked to vote on any proposed amendments.