What you need to know about the Mental Capacity Bill

Posted On: 
16th July 2018

Peers are set to debate the Government’s legislation to reform the Deprivation of Liberty Safeguards scheme over four years since the Lords Committee called for it to be replaced. Dods Monitoring's Daniel Laing explains.

NHS

Today the Parliamentary Under-Secretary of State, Lord O'Shaughnessy, will lead the Second Reading debate of the Government’s Mental Capacity (Amendment) Bill. While headline discussions around the NHS and social care focus on funding and the survival of the sector, this smaller piece of legislation significantly impacts the right to liberty and security for the most vulnerable in our care system.

Intending to reform the authorising process for arrangements where liberty is deprived from those who lack the capacity to consent, many in the sector were surprised when the Government were able to find space in the parliamentary timetable for the promised Bill. Indeed, some might be forgiven for expecting it to be rolled into wider reforms to the Mental Heath Act.

The legislation pertains to the Deprivation of Liberty Safeguards, providing for the lawful deprivation of liberty under the Mental Capacity Act. One look at the at NHS Digital statistics on use of the powers last year makes it clear that charities, care providers and hospitals will be paying attention to the legislation which concerns the treatment of people with dementia, learning disabilities, mental illness and a number of other conditions.

Reforms in the Bill will mean hospitals and independent providers will have the responsibility for authorising the new scheme. While in the community, CCGs and local authorities hold the responsibility, in an effort to bring certainty to a system which has often left patients in limbo.   

Since their inception as an amendment to the Mental Capacity Act 2005, introduced by the Mental Health Act 2007, DoLS have been the subject of heated debate in parliament. The House of Lords Mental Capacity Act 2005 Committee had originally called for a comprehensive review of the arrangements, so it is fitting the legislation starts its journey here. The committee’s findings were compounded by the Supreme Court case of Cheshire West, which meant a wider scope of interpretation for DoLS, leading to the Government requesting that the Law Commission review the scheme.

Consequently, we’ve known since the final Law Commission report - concluding the process was “time-consuming and expensive and in practice is usually not done” and publication of their draft Bill - that the Government had accepted most of the recommendations. We also knew they were considering whether legislation was needed. However, it was only this month that the reforms have finally made their way in front of parliament to be considered.

Under the new title, “‘Liberty Protection Safeguards “, arrangements see the Deprivation of Liberty Safeguard removed from the Mental Capacity Act 2005, with a new administrative scheme for authorizing arrangements when it comes to the deprivation of liberty.

The Bill contains detail of each step necessary with the person responsible needing to “reasonably believe” actions to be necessary to prevent “serious deterioration”. Clarification will be asked for by peers wanting to guarantee a sharp focus on ensuring decisions are made in the best interest of individuals. While it will also be important to ensure the new system allows for deprivation of liberty to be a last resort. Further to this, we might expect probing amendments at committee stage as peers explore what training will be afforded to the approved mental capacity professionals and where the costs of this will fall.

While the new system aiming to remove the problems associated with getting authorisation when moving between a care home and hospital setting will be welcomed, whether this places new pressures on the sector will need consideration. We can therefore expect the debate to consider the cost of new arrangements, with close attention being payed to the £200m a year the Government project the system will save local authorities.

Another area of focus with in the debate should be the implications and potential tie in with the ongoing review into the Mental Health Act led by Professor Sir Simon Wessely and how the two join up the entire mental health policy agenda will also be key. Thus, it will be interesting to see how ministers approach amendments which they might want to address further down the line.

The age those affected by the legislation is another area where the Government’s legislation departs from the Law Commission recommendations. Peers will be keen to know why the decision to cover arrangements for persons aged over 18 and over and not the 16 years recommended in the report has been made by ministers. With the transition between children and adult services in a mental health setting always a focus it will be important to ensure any new provisions do not mean a cliff edge in provision.

It would be fair to say the Government will want to make progress on the legislation without having too many amendments added to the Bill in what they will hope should be a valuable piece of legislation aiming to simplify the process.