Baroness Tyler: The stormy passage of the Mental Capacity (Amendment) Bill

Posted On: 
2nd May 2019

While the Mental Capacity (Amendment) Bill has completed its parliamentary journey, the next steps will be vital in determining how the new system will work, writes Baroness Tyler

While the deprivation of a person’s liberty is sometimes necessary and in their best interests, we must have clear rules about how to make these difficult decisions, writes Baroness Tyler
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Depriving a person of their liberty is one of the most draconian decisions the State can take. However, for many individuals with dementia, severe learning difficulties or other forms of mental illness, this decision is sometimes necessary for their own safety.

Such decisions are faced every day by the staff looking after them, whether it is removing sharp objects from individuals who self-harm or preventing someone from leaving their care home unaccompanied. So, whilst the deprivation of a person’s liberty is sometimes necessary and in their best interests, we must have clear rules about how to make these difficult decisions and all necessary safeguards incorporated within the process. Without them, we are unable to protect the rights of some of society’s most vulnerable individuals.

The existing system for making these decisions – the Deprivation of Liberty Safeguards or DoLS as they are known in the trade – has been widely criticised as too confusing and too bureaucratic. It was introduced in 2009 to provide a system for authorising arrangements to deprive individuals of their liberty in order to provide care and treatment. However, its complex nature plus evolving case law which considerably widened the scope of those covered by these rules, led to a huge backlog in applications. Change was necessary. When a Bill arrived in Parliament last summer, the Mental Capacity (Amendment) Bill, with the intention of replacing the current system with a “slimmed down” authorisation process, it contained very serious flaws.

The Bill took a “pick and mix” approach to the Law Commission’s well-crafted 2017 recommendations and crucially there hadn’t been any proper consultation with the sector – the charities working with the vulnerable groups concerned and those professional having to administer the scheme on the ground.  In reality, rather than improving the system, the original version of the Bill would have created more problems than it solved. 

Serious changes to the Bill were needed. An obvious and serious conflict of interest related to care home managers being responsible for assessing whether to deprive those under their care of their liberty whilst also delivering that care. This was removed by the Government after concerns were voiced from all corners, both inside and outside the House of Lords.

I led the amendment that ensured the offensive term of ‘unsound mind’ as a criterion for authorising the deprivation of a person’s liberty was removed from the Bill. It was replaced with a more appropriate term, “Mental Disorder”, sending a powerful message about challenging stigma in Government legislation.

Another improvement was when the Government listened to the calls of Peers and extended the protections to apply to 16- and 17-year olds.

While the Bill has been significantly improved through the efforts of many Parliamentarians working on a cross-party basis and with particularly detailed scrutiny in the Lords, it is worrying how rushed this Bill has been and disjointed from other relevant policy developments, most seriously the Mental Health Act Review, which is likely to lead to further mental health legislation which will directly impact on this Bill – there are clear areas of overlap between the two pieces of legislation – and quite possibly require yet further amendment. The sequencing of all this was not well thought through.

With the Bill now having completed its parliamentary journey, much relies on what will be set out in the Code of Practice and in secondary legislation, which will be vital in determining how the new system will work, including the vexed issue of a definition of what does and doesn’t constitute a deprivation of liberty. Neither the contents nor the timetable for publishing the Code of Practice are yet known, meaning that in various vital respects Parliamentarians were being asked to approve the Bill “blind”.

Finally, and perhaps most crucially of all, even if the Bill improves the system in theory, without proper funding staff resources and training it will fail in practice. Simply implementing the new system without proper resourcing will mean costs fall to care providers in a sector that is already fully stretched following local authority funding cuts. The Impact Assessment accompanying the Bill claims that it will lead to ‘significant savings for local authorities to reinvest into care.’ However, it is hard to escape the inference that these savings are because the unavoidable costs are being shunted on to care homes – without any financial support to help bear them.

Baroness Tyler is a Liberal Democrat peer