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Deprivation of Liberty Safeguards and the Mental Capacity (Amendment) Bill

Government responds to reports by Human Rights Committee

The Government has published its response to two reports concerning the Reform of the Deprivation of Liberty Safeguards and the Mental Capacity (Amendment) Bill published last year by the UK Parliament Human Rights Committee.

The Chair of the Committee, Harriet Harman MP commented:

"We welcome where the Government has listened to the Committee and proposed some changes to the Bill. 

"In our report we recommended that a statutory definition of deprivation of liberty be introduced to make sure that people who needed it are properly protected, to make sure the scheme was also workable and proportionate.

"The two Houses have not yet agreed on a definition, and now the Government is proposing an amendment so that Codes of Practice would include details of what arrangements are considered to fall within the new Liberty Protection Safeguards."

The House of Lords returned the Bill to the House of Commons with amendments. The Government has now proposed to remove the definition from the Bill and to say that "guidance about what kinds of arrangements for enabling the care or treatment of a person fall within paragraph 2(1)(b) of schedule AA1" must be included in Codes of Practice under the Mental Capacity Act. The Bill will therefore return to the House of Lords again.

Set out below are the Committee's further comments on the Government's responses.

Domestic settings
The Committee considered there was a need to streamline the application process for individuals receiving care or treatment in domestic settings and the need to avoid costly and cumbersome applications to the Court of Protection.

However, given the proposed definition of 'deprivation of liberty' would reflect the current broad definition in case law, the Committee has previously expressed concern that extending Liberty Protection Safeguards into domestic settings will expand the scheme too widely, would have significant resource implications, and would capture many who are contently receiving care from their families in their own homes.

Advance consent
The Committee recommended that advance consent, with appropriate safeguards, could offer individuals greater choice over their future care and treatment. Whilst this has not been included within the Bill, the Government will explore how advance consent operates in practice as part of care planning.

Independent mental capacity advocates
The Government response makes clear that the right to an independent advocate is not an automatic right.

Access to information
The Bill has been amended in line with the Committee's recommendation that there should be a duty to provide information to cared-for persons regarding their rights.

Care home managers
The Bill has been amended in line with the Committee's recommendation that care home managers must provide the responsible body with a record of the necessity and proportionality assessments.

Tribunals
As the Committee recommended, the Government is committed to reviewing whether challenges should be dealt with by the Court of Protection or a tribunal.

Legal aid
As the Committee recommended, non-means tested legal aid will be made available for those challenging a LPS authorisation, but the Committee remains concerned that legal aid is not available for all persons deprived of their liberty, irrespective of whether an authorisation has been made – this is particularly problematic in circumstances where significant numbers are deprived without authorisation. 

Unsound mind
As the Committee recommended, the Bill has been amended in line with its recommendation to replace the stigmatising term 'unsound mind' with 'mental disorder'.

Interface between Mental Health Act and the Mental Capacity Act
The Bill does not address the confused interface between these two Acts. The Committee looks forward to the Government's response to the MHA Review.

Conflict of interest
As the Committee recommended, the Bill has been amended to address potential conflicts of interest by preventing care home managers from conducting assessments themselves.

For progress of the Bill, click here. For details of the Committee's inquiry, click here.
4/4/19