Mental Capacity (Amendment) Bill ‘must be changed’, concludes Human Rights Committee
Definition of ‘deprivation of liberty’ needs to be clarified
The Government's Mental Capacity (Amendment) Bill requires further changes to protect the human rights of vulnerable people. The Joint Select Committee on Human Rights reached this conclusion following an investigation of the proposed legislation.
The Committee considers that in order to achieve such protection, the government must clarify the definition of 'Deprivation of Liberty' and avoid potential conflicts of interest for care home managers.
The Committee has identified several problems with the Bill, which would be solved by amendments proposed in its report. These include:
- Many of those caught by the Cheshire West definition are not perceived by their family or professional carers as being 'deprived of their liberty'. The Committee repeats its call to Parliament to consider including in the legislation a definition of deprivation of liberty in the context of mental capacity law, to clarify the application of the Supreme Court's 'acid test' whilst being mindful of the fact that any definition must comply with Article 5.
- Most significantly for those living in care homes, responsibility for undertaking or arranging the assessments required before a deprivation of liberty can be authorised would in future fall to care home managers. The Government has asserted that its proposals provide the assessment process with the degree of independence required by Article 5 case law. The Committee shares concerns expressed by disabled people, professional bodies, service providers and lawyers that in practice, care home managers will face conflicts of interest that will seriously hinder their ability to make objective assessments. The report proposes amendments to the Bill to enhance these safeguards.
Committee Chair Harriet Harman MP said:
"The human rights of vulnerable people who lack mental capacity must be protected with a more robust system of safeguards.
"We must give cared-for people, their families and professionals greater certainty by providing a clear definition: the Bill must be changed if it is to do that."
The Bill is due to have its report stage in the House of Lords on a date to be announced. To follow progress of the Bill, click here.
26/10/18