Where are we now?

This week we have nearly reached the end of a 9 month process during which the Mental Capacity Act (Amendment) Bill has passed through Parliament. The Bill started in the House of Lords last July, moved through to the House of Commons in December and this month we watch the final stages of “ping pong” between both Houses.

If “ping pong” simply means a table sport played with a small bat and ball then we’re with you. It’s unlikely that you’ll ever win a pub quiz with an in depth knowledge of the parliamentary bill passing process anyway! All of this just means that the substantial discussions are nearly over. The time of “amendments in lieu of amendments” is drawing to an end. Agreement over the final changes is getting closer after which the Bill will be sent to the Queen for Royal Assent. On receiving Royal Assent, the Bill will become the law that governs the deprivation of liberty of over 300,000 people affected by dementia, learning disabilities, autism, mental illnesses and brain injuries.

Reform of the existing Deprivation of Liberty Safeguards (DoLS) was long overdue and this was an opportunity for the government to update mental capacity legislation and ensure the protection of the rights of those unable to consent to their care arrangements. The right to liberty (set out in Article 5 in the Human Rights Act) is a fundamental human right, it is what grants us all, as human beings, the freedom to live without extreme restrictions on our movement. However, it is not an absolute human right, and there are certain very specific circumstances where it might need to be restricted for someone’s (or another’s) protection. When this happens, it is imperative that the legislation governing that restriction has human rights at its core.

When the government made the rather unexpected and hasty announcement that it would be bringing in new legislation (without the usual consultation paper that precedes the introduction of such Bills), we knew that it was vital to ensure a human rights analysis informed the process. From the day the first draft of the Mental Capacity (Amendment) Bill arrived in the House of Lords in July last year, we have been fighting to ensure that the new Bill does not dilute human rights protections. You can read our blog expressing our concerns at that time here.

Over the last 9 months, alongside other civil society organisations we have written briefing after briefing at every stage of the process pushing human rights to the forefront of parliamentarian’s minds- or at least their desks. We’ve sat down with members of the Bill team at government and urged them to champion human rights and help ensure the culture of respect our HRA seeks to support. We’ve published a letter in the Times calling on the public to join us in lobbying to make sure that this new Bill does not replace one dysfunctional system of protections with another.

It’s been a long and challenging process and as of this week, as agreement looms, this stage of lobbying, on our part is nearly over. *Update (11th April), the Bill will return to the Lords on April 24th. 

What happened during the parliamentary process?

Despite the energy and evidence that we and our colleagues from campaign, advocacy and support groups put forward, parliament failed to improve the law in some crucial areas. For example, the advocacy arrangements in the Amendment Bill are considerably less than under the current DoLS system and remain significantly weaker than those proposed by the Law Commission in their review of this area of law. An automatic right to an independent advocate would ensure non-discrimination (Article 14, HRA), enabling all people to exercise choice and control (Article 8, HRA) and the ability to challenge, rather than restricting this to those who are able to request such support. Sadly, the new Bill does not go as far as this.

During the House of Lords debates, the Government amended the Bill to include 16-17 year olds which is -on the surface- a positive move for universal human rights. However, little thought has went into how the new safeguards ensure that in cases where it’s appropriate, i.e. where there are no safeguarding concerns, the parent (s) can act as the appropriate person. In their current form, the new safeguards appear to undermine the Children Act (1989) which ensures that parents can object to the young person’s placement. We cast our minds to Steven Neary or Oliver McGowan, whose parents were cut out of the process of arranging their care, leading to unthinkable human rights violations. Steven’s right to liberty (Article 5, HRA) and his right to family life (Article 8, HRA) were infringed for almost a year. For Oliver, the very right which ensures he can enjoy all of his other rights- his right to life (Article 2, HRA) was not respected, and sadly he died.

However, 9 months of lobbying has secured some important gains. We have in fact witnessed some major concessions in two key areas. The definition of deprivation or liberty and the right to information.

The definition of deprivation of liberty

The Law Commission Report did not recommend implementing a statutory definition of ‘deprivation of liberty’, preferring to keep it tied to Human Rights Act (and through that the ECHR) and UK case law. Yet, at Committee Stage in the Commons, the Government introduced an amendment to add in a completely new statutory definition, set out in complicated language and working on an exclusionary, narrow basis.

We met with the Bill Team in March and raised our serious concerns that creating a new definition which was not at all linked to the European Convention on Human Rights was at best superfluous and confusing and at worst, extremely dangerous. A new, statutory definition could mean that people who fall outside of Parliament’s concept of deprivation of liberty but within the right to liberty (Article 5) definition could not have their deprivation of liberty authorised under the Mental Capacity Act 2005. For those people, only the High Court would be available to authorise such a deprivation of liberty, which, in turn, would give rise to excessive delays in accessing vital safeguards. During these delays, an individual’s right to liberty (Article 5, HRA) is being violated without the protective framework which ensures that this is done lawfully, legitimately and in the least restrictive manner.

On the last Friday in March, after weeks of lobbying we heard that the Government had decided not to pursue a statutory definition of deprivation of liberty. Instead, its amendment would retain section 64(5) of the MCA which provides that deprivation of liberty has the same meaning as Article 5.

“We have listened carefully to the views of MPs, peers and other stakeholders and decided not to insist on amendment 1. Instead, I propose that the meaning of a deprivation of liberty will still be as defined under article 5 of the convention, as it is under section 64(5) of the Mental Capacity Act.”

Caroline Dinnage Minister of State for Health speaking on 2nd April 2019- House of Commons- 

*Update the Bill will return to the House of Lords on April 24th, we expect (and hope) that the Lords will accept the government's proposal and this will not change. 

The right to information

We fully supported an amendment voted in by Peers which meant that important information would be provided upfront to families as a matter of course. Information not only about the process, but importantly their rights to advocacy and challenge in a format that they can understand. After initially rejecting the Peers’ amendment the Government brought forward amendment 24 at Report stage in the Commons which places a duty on hospitals, CCGs and local authorities to publish information for families on the process, effect of the measures and rights to challenge ‘as soon as practicable’.

We were happy with the government’s acceptance of this important safeguard but were still concerned that the phrase ‘as soon as practicable’ could mean a system working on the timescales of the responsible body rather than the individual and their family.

Last week, we saw the Government concede again, providing more detail which holds that after authorising arrangements, the responsible body must “without delay” arrange for copies of the person’s care plan to be given or sent to the person and certain others – and if this does not happen the responsible body must record why not within 72 hours.

“Government amendment (b) in lieu will ensure that if the responsible body has not done this within 72 hours of the arrangements being authorised, it must review and record why this has not happened. Providing information, including in the authorisation record, is so important to ensure that people are able to exercise their rights. The Government have listened and reflected on the concerns of the other place and have brought forward this amendment. I ask that the House supports it.”

Caroline Dinnage Minister of State for Health speaking on 2nd April 2019- House of Commons-

*Update the Bill will return to the House of Lords on April 24th. 

What happens now?

The way things look at present, we can anticipate that the Mental Capacity Act (Amendment) Bill will become law almost it stands. The time for substantial content changes is drawing to an end. Over the next few weeks we await final agreement- particularly on Amendment 25 which the Commons returned to the Lords after debates on the floor on April 2nd. * Update a final stage of, "ping pong" has today (11th April) been scheduled for April 24th 2019. We will update you on this as soon as we can

In January of this year, the Government also launched a consultation to revise the Mental Capacity Act 2005 code of practice. This consultation closed on the 7th  March so we will know more over the coming months as to what those changes might look like.

A separate but linked code of practice will be developed to accompany the Liberty Protection Safeguards (LPS) created through the Mental Capacity (Amendment) Bill. The government has established various working groups to produce the code. We expect to see something on paper around June of this year. It is in this code that practical guidance and detail on the new safeguards will sit so what this looks like with have huge human rights implications.

We are not currently on any of these working groups directly, but feeding in through a third sector forum. Over the coming weeks, we hope that will change. If the code of practice is not developed using a human rights framework, then we will be back to the drawing board in years to come. 

We will keep you updated as time process continues.