The Mental Capacity (Amendment) Bill – where are we now?

The Mental Capacity (Amendment) Bill was introduced with the aim of replacing the existing Deprivation of Liberty Safeguards

Executive summary

The Mental Capacity (Amendment) Bill (“the Bill”), introduced into the House of Lords on 3 July with the aim of replacing the existing Deprivation of Liberty Safeguards (“DoLS”) with the new Liberty Protection Safeguards (“LPS”) has been making its legislative progress slowly but steadily through the House of Lords. A number of important amendments to the substance and content of the Bill have been made since its introduction and in this update; we examine its progress, take a look at the key changes and consider the implications of the new legislation for all those involved in this complex and highly sensitive field.

Background

By way of a brief recap, the essentials of the Bill were that a responsible body can authorise arrangements giving rise to a deprivation of someone’s liberty in any setting; the responsible body will depend on where the person is being cared for, for example in a hospital, in their own home or in a care home, so that it may be the relevant hospital, the local authority, the CCG or another organisation which is the designated responsible body. To authorise those arrangements, the responsible body needed to be satisfied (in the Bill’s original wording) that:

  1. The patient lacks capacity to consent to the arrangements;
  2. The patient is of unsound mind; and
  3. The arrangements are necessary and proportionate.

Following the Bill’s introduction in July, one of the earliest expressed concerns was about the extent of the involvement of care home managers, where patients were in a care home setting. Under the DoLS regime, assessments are carried out by the local authority or best interests assessor (“BIA”), but under the new Bill, the care home manager would be responsible for the assessment, which would then be signed off by the local authority.

The government’s amendments

In response to these and similar concerns expressed, not just by peers during the Bill’s initial stages in the House of Lords, the Government published a number of significant amendments in mid-November. Crucially, in connection with care homes, it was instead proposed that the responsible local authority could carry out the assessment, or delegate it to the care home manager. In the latter scenario, in order to avoid any possibility of a conflict of interests, the manager would not be able to appoint anyone with a financial interest in the care home to carry out the assessment. Nevertheless, with local authorities remaining under severe financial and time pressures, if the provision remains in the final legislation, it will be interesting to see how many choose to carry out the assessment themselves, rather than referring them on to the relevant care home manager.

Other amendments also had the effect of confirming that the pre-authorisation review – which would be carried out in all cases - will also be arranged by the responsible body and that medical and capacity assessments have to be carried out by people with suitable knowledge and experience

Some of the other amendments included replacement of the term ‘unsound mind’ with ‘mental disorder’, which is in line with the terminology used in the Mental Health Act 1983 and the extension of the new scheme to 16 and 17 year olds, who had previously been excluded. Also of significance is the amendment which specifies that the patient must now be consulted about their arrangements so that their wishes and feelings can be ascertained, and that these wishes and feelings must be considered as part of the ‘necessary and proportionate’ limb of the overall assessment process.    

During the Bill’s report stage between 21 and 27 November, peers voted for an amendment to the ‘necessary and proportionate’ wording of the original Bill so that the ‘necessary’ test is now ‘to prevent harm to the cared-for person’. The Government had objected to this wording on the basis that it risked lessening other factors in the overall assessment. Instead, the Government, argued, the code of practice under the Mental Health Act should set out the factors to be looked at in a ‘necessary and proportionate’ assessment. It was agreed however that ‘proportionate’ should be amended by adding ‘in relation to the likelihood and seriousness of harm to the cared-for person’.

The extent of the role of the approved mental capacity professional (“AMCP”) was another area which had been widely debated. A specialist role created largely to replace the BIA under the DoLS regime, initially, the Bill had assumed that referral to an AMCP would take place only if a patient objected to their proposed care arrangements. The Government agreed with concerns around patients in independent hospitals however, with the effect that all cases which involve patients in independent hospitals will now be referred to an AMCP.

An indication that this particular area remains somewhat fluid came in a further House of Lords debate when Lord O’Shaughnessy confirmed that an objection to the arrangements by a patient’s relative or another person with an interest in the patient’s welfare would also lead to an AMCP review. He also made it clear that an AMCP could be involved in other circumstances, which he confirmed would be considered in more detail once the Bill reaches the House of Commons.

What happens next?

The Bill is scheduled for its 3rd reading in the House of Lords – the final chance for any amendments to be made before it moves to the House of Commons – on 11 December, where it seems likely to be overshadowed by the vote which is scheduled to take place in the House of Commons on the Prime Minister’s proposed Brexit deal. Regardless of the outcome of that particular vote however, all those with an interest in the social care arena should be keeping a close eye on the Bill as it concludes its passage through the House of Lords and moves to the other chamber. The implications for anyone involved in the commission, provision or delivery of care and related services to those who are in a setting in which they are deprived of their liberty are significant and wide-ranging. We will be issuing further updates as the Bill continues its parliamentary journey.

 

If you have any questions or would like to know more about our update, please get in touch with your usual Weightmans contact, or Morris Hill, Associate, 0151 242 7990, morris.hill@weightmans.com.

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