Mental Capacity (Amendment) Bill: A guide for advocates

The Mental Capacity (Amendment) Bill will amend the Mental Capacity Act 2005 (MCA), replacing the deprivation of liberty safeguards (DoLS) with the ‘Liberty Protection Safeguards’ (LPS). This will affect fundamental human rights for over three hundred thousand citizens in England and Wales with conditions including dementia, learning disabilities and brain injuries, as well as their families/ carers.

Unlike for DoLS, the LPS applies to any setting – hospitals, care homes, supported living and domestic settings. Whoever is commissioning or providing care - NHS Trusts, CCGs, Health Boards or Local Authorities - becomes the Responsible Body and organises assessments, reviews, authorisations, renewals and monitoring.

The DoLS have been widely criticised for being overly complex and administratively cumbersome, with Supervisory Bodies being unable to cope with the scale of applications following the Supreme Court’s ruling in Cheshire West. The Government states that the Bill seeks to simplify current arrangements, streamlining the authorisation process to ensure compliance with the law and to put the cared-for person at the heart of the decision-making process.

However, the Bill as introduced into the House of Lords was heavily criticised by a wide range of stakeholders. Whilst the current system is deeply flawed, the Mental Capacity (Amendment) Bill as it was originally published would have made the situation far worse, weakening people’s rights and the protection of individual’s liberties.

Positive movement

In the original Bill there was no legal duty to inform the person or others of their rights, and no duty to consult the person as part of the process. Care Home Managers appeared to be responsible for completing all assessments for people in care homes and were to decide if the person should have an appropriate person or advocate. Private hospitals were to be their own Responsible Body, assessing and authorising their own detentions.

This has now changed - but only thanks to the enormous amount of work by many people and organisations, Peers and MPs. VoiceAbility has played a major role, including by briefing Peers and MPs, drafting amendments, providing case studies and raising understanding of the issues publicly. We have had particular success in addressing restrictions on access to advocacy, reducing the inappropriate role of the Care Home manager in this and increasing rights to information. We did this by using the experience of people subject to DoLS and advocates within and outside the organisation, in order to represent the voices of the people who use care services.

Changes which have been made during the passage of the Bill include:

• Access to advocacy improved. If an Appropriate Person cannot be identified then an IMCA will be appointed by the Responsible Body, unless it is considered that an advocate would not be in the person’s best interest. Whilst not ideal, this is a very major change from the original provisions in the Bill, considerably reducing barriers to accessing advocacy.
• Definition of ‘unsound mind’ removed. Instead, a person must have a ‘mental disorder’ for LPS to apply.
• Extension to 16 and 17 year olds. LPS can be used for 16 and 17 year olds when they are being deprived of their liberty, rather than an application to the Court of Protection.
• Rights to information strengthened. The Responsible Body must now publish information about the LPS process, including information about when an Independent Mental Capacity Advocate (IMCA) should be appointed and how to challenge the LPS. If an LPS authorisation is proposed, steps must be taken to ensure the cared for person understands this information. If they are subject to an LPS authorisation, they must be given a copy of the record.
• Greater safeguards in Independent Hospitals. If someone is deprived of their liberty in an independent hospital, the arrangements can only be authorised by the local authority (in England) or local health board (in Wales). The pre-authorisation review of the arrangements must be completed by an Approved Mental Capacity Professional (AMCP).

Serious flaws

Despite these changes, the Bill remains deeply flawed. Sadly, it is still worse than the current legislation, truly inadequate as that is. Amongst the problems:

1. Care Home Managers: The role of the Care Home Manager remains too influential, too conflicted and too burdensome.

2. Two-tiered system of review: The Bill extends particular safeguards to people in independent hospitals. But all other cared for people, unless they are objecting to the arrangements, are unlikely to have access to the additional safeguards and independent review provided by an AMCP. This fails to protect people who do not object due to their level of disability or vulnerability.

3. Renewals: Renewals allowed under the Bill are two periods of 12 months, followed by an unlimited number of 3-year periods. Our concerns are:

• The lack of minimum review standards means no way of knowing how long people under 3-year authorisations will go without an automatic review.
• No provision is made in the Bill for independent scrutiny of authorisation renewals.
• In care home arrangements, the consultation is to be carried out by the Care Home Manager, which raises issues of potential conflicts of interests, particularly where there are poor relationships between family members and care home staff.
• There is no clear requirement for new assessments at renewal, no matter how long it has been since the assessments were carried out.

4. Interface between mental capacity and mental health legislation: The often critical interplay with the Mental Health Act cannot be addressed by the Bill, as the Government has not yet had opportunity to respond to the review of that Act.

5. Definition of deprivation of liberty: We believe there should have been in-depth consultation with charities, providers, legal and other professionals to ensure that there are no unintended consequences of introducing a definition. We are concerned that the current definition does not provide the legal clarity required and is likely to be the subject of considerable litigation and test cases.

Furthermore, the vitally important Code of Practice has not yet been developed, leaving far too many major questions unanswered for people to feel confident in the legislation. The Impact Assessment, which estimates the cost and effects of implementing the Bill, appears to be out of kilter with the Bill, unclear, and likely to exacerbate the risk that many people are left without anyone independent to support and represent them.

Where do we go from here?

Whilst we believe that the DoLS must be reformed, we are troubled by the implications of the Bill and believe that it will result in far fewer safeguards for cared-for persons under LPS.

We must continue to do what we can to address the most regressive features of the Bill. Together with others, we are already engaged in the development of the Code of Practice. We are striving to ensure that greater consideration is given to people’s voices and rights.

With so many issues not clearly spelt out in the Bill, it will be essential that these are covered in the Code and Regulations and that the scope that the Bill provides to infringe upon people’s rights without sufficient scrutiny and challenge is reduced.

We would be pleased to hear the views of colleagues in other organisations about the Bill and how its implementation can be shaped to better serve the people who need support and their families who should be at its heart. Please contact me at jonathan.senker@voiceability.org