“It is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race. It may be that those rights have sometimes to be limited or restricted because of their disabilities, but the starting point should be the same as that for everyone else. This flows inexorably from the universal character of human rights, founded on the inherent dignity of all human beings … Far from disability entitling the state to deny such people human rights: rather it places upon the state (and upon others) the duty to make reasonable accommodation to cater for the special needs of those with disabilities. Those rights include the right to physical liberty”*

What is the Mental Capacity Amendment Bill?

The Mental Capacity Amendment Bill was introduced in the House of Lords on 3 July 2018 by Lord O’Shaughnessy. The Bill, appearing considerably quicker than many had expected, seeks to give legal effect to the Law Commission’s recommended amendments to the Deprivation of Liberty Safeguards (DoLS) procedures published within the recent Mental Capacity and Deprivation of Liberty Report.

What happens now?

The second reading of the Bill is set to take place in the House of Lords on the 16th July 2018.

Does the Amendment Bill offer positive change from a human rights perspective?

The Bill exists because of a commitment to legislate on the Law Commission’s recommendations; recommendations aimed specifically at bringing DoLS procedures in line with the protections in our own Human Rights Act (drawing on rights from the European Convention on Human Rights (ECHR)) and the aspirations of both the United Nations Conventions on the Rights of People with Disabilities (CRPD). Parts of the Bill, which I outline below, do address and offer new (albeit untested) solutions to some of the key human rights challenges with the current DoLS framework.

However, despite these positive inputs there is also cause for concern, and in particular there are some serious omissions of the new Bill. What is on paper currently, assuming it was to become law as it is, at best looks quite different from the Law Commission’s recommendations and at worst could take us further away, offering weaker human rights protections than DoLS and putting the rights of many people with learning disabilities and cognitive impairments at stake.

What are some of the positives and what does this mean for people’s rights?

Positively, the Bill does draw on the Law Commission’s proposals for a new system of safeguards replacing DoLS with Liberty Protections Safeguards (LPS). These alternative safeguards would authorise the specific arrangements which give rise to a deprivation of liberty rather than deprivation of liberty more generally. Currently DoLS only apply to care homes, hospitals and those over 18 with a mental disorder; LPS would extend this much wider, authorising new arrangements which could include;

  • where a person lives in one or more particular places (e.g. a care home and supported living);
  • where a person receives care or treatment at one or more particular places (e.g. care home and hospital); or
  • covering the means and manner in which a person can be transported to a particular place or places (e.g. being moved from a care home to hospital).

This means that the right to liberty safeguards (as set out in the Human Rights Act, Article 5) under LPS would expand to cover all of those deprived of their liberty regardless of their specific care arrangement. It’s crucial to note that that new system would need to be embedded according to human rights principles and not become invasive. The Bill does not implement the Law Commission’s recommendation that the regime apply to people aged 16+ but keeps the status quo of applying to 18+ only. This raises some big questions about the protection of young people, especially given the “grey area” that can often appear when they transition from children to adult services, and the recent well documented poor experiences of many.

The new Bill also proposes including the NHS as a ‘responsible body’ therefore having responsibility for authorising arrangements under the LPS regime, rather than leaving it to the local authority only. Involving the NHS in this way, can help share the practical workload of authorisations, and could have the potential for a more positive human rights approach.  In principle, involvement of those delivering care should mean decision-makers have a closer relationship to, and understanding of the needs and wishes of person receiving care and treatment. However, this only works if respect and protection of the person’s human rights are at the core of the decision-makers’ approach, and that there are appropriate safeguards in place that enable all people subject to an LPS to have decisions independently reviewed, in a timely manner, as required by the right to liberty (HRA, Article 5).

Encouragingly under the new Bill, Section 4B Mental Capacity Act (2005)  will be amended to legislate that emergency situations would be the only situations in which it is appropriate to authorise arrangements without undertaking the full set of assessments (as opposed to the current situation where ‘urgent’ authorisations can be made without prior assessment). This is a positive move.

Under the new Bill steps to deprive a person of their liberty can only be taken in three circumstances:

  • Where a decision relevant to whether there is authority to deprive the person of liberty is being sought from the Court of Protection;
  • Where steps are being taken (either by a responsible body or a care home manager) to obtain authorisation under Schedule AA1 (replacing urgent authorisations under DOLS);
  • In an emergency

Which Law Commission recommendations have been omitted and what does this mean for people’s rights?

The Law Commission proposed that health and social care providers must complete formal documentation accompanying 'life changing’ decisions. This proposal is itself relatively modest when you think of the kind of decisions in question and their implications on a person’s private and family life (HRA, Article 8). For example, decisions to restrict contact with family or friends, decisions that someone lacks capacity to consent to sex, or decisions to administer treatment which the person objects to. Instead of putting in place safeguards, as suggested by the Law Commission, the Amendment Bill doesn’t impose any specific requirements on health and social care providers making these kinds of decisions. This is a missed opportunity to make clear how service provides can be doing more to protect people’s human rights around choice and dignity.

Similarly, the Amendment Bill has omitted the Law Commission’s (again modest and widely approved) proposal to place particular weight on the person’s wishes and feelings during best interest decisions. In terms of protecting people’s human rights, this is especially concerning. At present the best interest assessment process is often weighted towards what’s considered necessary or proportionate with less emphasis on what matters to the person. The Law Commission recommended flipping this hierarchy and adopting a human rights and person centred approach putting the person’s wishes at centre. The Amendment Bill does not reflect this. In our experience of working with thousands involved in the health and care system every year, it is precisely this lack of application of the DoLS in a human rights compliant manner which leads to so much confusion, poor decisions, and ultimately unlawful restrictions on the liberty and choices of people with mental capacity issues. Explicitly requiring a human rights approach to assessing best interests, rather than leaving practitioners to struggle with how to comply with their legal duties under the HRA and mental capacity laws, is very much needed.

The Mental Capacity Act was critical in enshrining powers of attorney to make health and welfare decisions on a person’s behalf, crucially an appropriately empowered ‘’ could refuse deprivation of liberty on behalf of the person. The new bill weakens the influence of attorneys through a diluting of the rights to information currently contained within DoLS. If there is no specified right to access information about a person’s detention and the reasons behind it, how can someone acting as power of attorney challenge this? In addition, the Law Commission recommended a system involving an ‘appropriate person’ who can be selected to replicate the functions of an RPR (by someone who has capacity), this appropriate person should involve the cared for individual in challenging decisions which affect their rights. The Amendment Bill avoids mentioning challenge as a role of the ‘appropriate person.’

In addition, the new bill provides that only the ‘appropriate person’ can make a case for an Independent Mental Capacity Advocate (IMCA) by proving that it is in the persons’ ‘best interests’ to have one. There is no mechanism outlined for the person to request an IMCA.

Finally, there is no sign of the Joint Committee on Human Right’s recommendations around making the appeal process more participatory and accessible. On the contrary, the Amendment Bill promotes appeals continuing to be heard by the Court of Protection rather than a Tribunal which many people had hoped.

In summary

The new Amendment Bill, where the Law Commission’s recommendations have been addressed there are positive steps towards realigning practice with human rights legislation. However, where these recommendations have been omitted or diluted the Bill raises serious concerns for the basic rights of people who for too long, have been made vulnerable by a system that should be respecting and protecting them. Indeed, many of these people will have had little opportunity to even read the Bill as an easy read version has yet to be made available. We must ensure that the Mental Capacity Amendment Bill receives the analysis and scrutiny proportionate to the impact it could have on people’s lives; this is not a law to be simply waived through by Parliament. We ask everyone reading this to make this Bill visible, speak up for human rights and put pressure on to ensure this Law Commission’s recommendations do not go unaddressed by new legislation.

* Baroness Hale, 1) P v Cheshire West & Chester Council & another; (2) P & Q v Surrey County Council [2014] UKSC 19