More work to be done as Mental Capacity (Amendment) Bill becomes law

Posted On: 
16th May 2019

The Mental Capacity (Amendment) Bill has received Royal Assent, meaning it has become an Act, enshrined in law.

This legislation revolves around the safeguards available to people who are deemed to lack capacity to make decisions about their treatment and who have restrictive care arrangements, such as not being allowed to leave the place where they are receiving treatment without permission or not being able to see their family.

Under the new law, Liberty Protection Safeguards (LPS) will replace the older ‘Deprivation of Liberty Safeguards (DoLS)’ – a system widely criticised for being too complicated. A huge backlog of applications for DoLS left an estimated 125,000 people, including those of us with mental health problems, without vital legal protection.

As the Bill made its way through Parliament, mental health charity Mind repeatedly called for changes to strengthen people’s rights and empower them - or someone acting on their behalf - to question decisions about their care. LPS is meant to be more streamlined, but Mind remains concerned about the new process, fearing it could still leave vulnerable people without the protection they need.

Michael Henson-Webb, Head of Legal at mental health charity Mind, said:

“The long-awaited overhaul of Deprivation of Liberty Safeguards (DoLS) was an opportunity to fix a system that was not fit-for-purpose and left thousands of people, including those of us with mental health problems, without vital legal protection. We welcome some of the changes associated with this law, such as expanding the scope of the system and reducing the number of assessments required, potentially making the process work for increasing numbers of people.

“However, there are a number of missed opportunities. By streamlining the process, a number of important safeguards have been removed. In addition, recommendations made by the Law Commission and others to make sure those who lack capacity have more involvement in decisions made about their own care and treatment have largely been ignored.

“Mind has been calling for changes to strengthen people’s rights and empower them - or someone acting on their behalf - to question decisions about their care. While some of our amendments have been addressed in part, we remain concerned that this law does not place enough autonomy or decision making in the hands of vulnerable people directly affected, or those advocating on their behalf.

“How this law will work in practice will rely heavily on what’s included in the accompanying guidance. It is vital, therefore, that this code of practice is developed collaboratively with charities such as Mind, legal professionals, practitioners and those affected by the legislation. We want to see the views and experiences of people with mental health problems – in addition to those with dementia and learning disabilities – taken into account.

“It has also been concerning that this Bill was drafted without sight of the independent Review of the Mental Health Act and has now been made an Act before the Government has formally responded to that Review. If the recommendations of the Review are followed, approximately 20,000 patients who are not objecting to their treatment could be moved from the Mental Health Act to the Mental Capacity Act. We need to see equivalent safeguards in place so that regardless of which Act you’re treated under, you receive the treatment you need that’s in your best interests, if you’re not deemed to have capacity to make decisions at this time. We’d urge the Government to address these outstanding concerns.”