Mental Capacity (Amendment) Bill

Executive summary

• Commons Amendment 1, which defines ‘deprivation of liberty’ is too complicated, is incompatible with Article 5 rights and will lead to costly litigation.
• Embedding supported decision-making in a new definition of deprivation of liberty would help to address the perceived problems with deprivation of liberty in the community.

Background

The Mental Capacity (Amendment) Bill is the primary means to protect the rights to freedom of over 2 million of the most vulnerable people in society: it is imperative that it works as well as possible. If it does not, then it will not solve the problems of the existing Deprivation of Liberty Safeguards (DoLS) framework, which include rising costs, significant delays, and the backlog of applications. Getting this Bill wrong could also lead to costly litigation and additional human rights breaches.

Many amendments have substantially improved the Liberty Protection Safeguards (LPS). For example, amendments to reduce the potential for conflicts of interest in care homes, and that ensure that Approved Mental Capacity Professionals (AMCP) undertake the pre-authorisation review of all deprivations of liberty in independent hospitals are to be welcomed. Similarly, Commons amendments that prevent independent hospitals from acting as the responsible body are imperative for protecting our most vulnerable citizens.

Other amendments are less positive. The new definition of deprivation of liberty is too complicated, unclear, out of step with international human rights obligations and will likely lead to early challenges in the courts.

Consideration of Amendments on 26 February 2019 is the final opportunity for members of the House of Lords to improve the Bill. The focus of this briefing is on how and why the Lords should seek to improve the definition of deprivation of liberty in Commons Amendment 1 “Meaning of Deprivation of Liberty”.

Academic(s)

Professor Rosie Harding

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