Baroness Jolly: Opposition peers and healthcare representatives have forced major changes to the Mental Capacity (Amendment) Bill

Posted On: 
13th December 2018

Liberal Democrat Health spokesperson Baroness Jolly writes about the Mental Capacity (Amendment) Bill which had its final reading in the House of Lords earlier this week.

"The Conservative Government has introduced the new legislation at such a rapid pace, that when the Bill arrived in the Lords it was riddled with fundamental issues that proved a serious risk to vulnerable people in care" - Baroness Jolly
Credit: 
PA

At the end of July, out of the blue the Conservative Government published the Mental Capacity (Amendment) Bill. Months of discussions with the Government and countless amendments were to follow, and most importantly, two major Government defeats. 

Initially I welcomed the Bill as it proposed to fix the deeply flawed system of Deprivation of Liberty Safeguards. The current system is meant to protect those vulnerable people who lack mental capacity. However, the Deprivation of Liberty Safeguards is at best bureaucratic and has a huge backlog of cases, impacting the care and safety of our most vulnerable.

It quickly became apparent that what was on offer in the Mental Capacity (Amendment) Bill was simply not good enough. Instead of fixing the problems that existed, it was just creating new ones. This view was shared across the Liberal Democrats, and also shared by Labour peers, Crossbench peers and numerous healthcare representatives.  

The Conservative Government has introduced the new legislation at such a rapid pace, that when the Bill arrived in the Lords it was riddled with fundamental issues that proved a serious risk to vulnerable people in care. 

Firstly, there was a lack of clarity surrounding the definition of a “deprivation of liberty” (or lack thereof). Equally, outdated terms such as “unsound mind” had to be removed from the Bill. This pejorative language has no place in legislation being drafted in 2018. The role of advocacy for patients in the new process was also incredibly troubling, as there was a very limited number of circumstances where a right to an advocate was triggered. Given the vulnerability of those to which the provisions of the Bill would apply, it was clear that this was an issue.

In the new legislation the Government was also trying to give much of the power in running the new system to managers of care homes, a clear conflict of interest. We in Opposition were adamant that assessments must be undertaken by independent and qualified professionals. Care home managers should not be able to sign off on their own homework.

There were also concerns about how far the Bill protected the rights of the cared-for person; there was not sufficient provision for complex cases or cases where objections were raised to be taken to the courts, and a lack of protection for rights under Article 5 of the European Convention on Human Rights. 

Working on a cross-party basis, we have changed the Bill to something very different from how it started. And while we put a huge amount of time and effort into amending this bill and achieved an incredible amount, all that can really be said is the Bill has reached an acceptable standard. 

The Bill had its final reading in the House of Lords on Tuesday 11 December. It is now the turn of the Commons to scrutinise the Bill.

There are two things I would urge; that the MPs continue the work of improvements on the legislation started by the Liberal Democrats and other Opposition peers; and that the Conservative Government never again introduce such a poorly fit-for-purpose Bill again. On this final point however, I will not hold my breath. 

The Baroness Jolly is the Liberal Democrat Health spokesperson and is a Lib Dem peer.